TMI Blog2020 (3) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... is that there were certain transactions between the operational creditor and corporate debtor along with Univercell and MPS and thus the Adjudicating Authority should look into all those transactions and on such basis, it is tried to be said that the dues are not payable - The attempt of the corporate debtor to push through mutual tripartite agreement (page 80) did not succeed as operational creditor did not join the same. If anything, the document would rather show acceptance of liability by the corporate debtor. Even if the parties and/or their sister concerns are indulging in various transactions and deals, when there is an independent transaction of sale giving rise to dues and there is default in payment of the same, that indeendent transaction cannot be doubted or put into shadows due to other dealings between the parties and/or their sister concerns. Section 9 application was properly admitted - Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 623 of 2019. - - - Dated:- 29-11-2019 - A. I. S. Cheema J. (Judicial Member) And Kanthi Narahari Technical Member For the Appellant : V. Ramakrishnan , Senior Advocate with K. S. Mahadevan , Ms. Swati Bansal and Ank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance as on September 30, 2015 there was an amount of rupees forty four crores eighty nine lakhs eighty three thousand and eighty four outstanding which was confirmed by the corporate debtor through authorized signatory on letter head. The operational creditor claimed that cheque dated November 1, 2017 had been issued by the corporate debtor for ₹ 27,79,59,587 which bounced. The operational creditor claimed that it had issued notice under section 8 of the IBC for the outstanding amount which was delivered to the corporate debtor on address as per master data, MCA which was placed on record. The notice was sent on the given address through Blue Dart Courier and Postal Department and delivery reports were placed before the Adjudicating Authority. 4. The operational creditor points out, when the matter was before the Adjudicating Authority, the corporate debtor accepted that operational creditor used to deliver mobile handsets and accessories to sister concern of the corporate debtor and to different branches of the sister concern as was appearing from the invoices raised by operational creditor as per the arrangement between the operational creditor and corporate debtor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise, it is stated that by the document, adjustment of ₹ 4 crores out of ₹ 5 crores of the amount of loan, which was due and payable by corporate debtor to the operational creditor was confirmed by corporate debtor and consideration which was to be paid between MPS and Univercell was sought to be adjusted, out of liability of the corporate debtor. The incomplete document would leave huge liability still due, even if one sits down to consider it. 7. Learned senior counsel for the appellant referred to the judgment in the matter of ArcelorMittal India P. Ltd. v. Satish Kumar Gupta [2018] 211 Comp Cas 369 (SC) ; [2019] 2 SCC 1. It is argued that in the said judgment, the hon'ble Supreme Court dealt with section 29A(c) of the IBC. It is stated that as per section 29A(c), relevant time to consider ineligibility to submit resolution plan is the time of submission of the resolution plan but in the above judgment, the hon'ble Supreme Court found that antecedent facts reasonably proximate to this point of time can always be seen, to determine whether the persons referred to in section 29A are, in substance, seeking to avoid the consequences of the proviso to sub-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate debtor admits liability to pay. Referring to the asset purchase agreement (page 83), counsel submitted that the operational creditor was not party to this document which agreement was between Univercell and MPS, which may be sister concerns of the corporate debtor and operational creditor, respectively. It is argued that they are independent entities for the law and if their transaction is in dispute before arbitration, that would have no connection with the present transaction of sale of mobile handsets and accessories between operational creditor and the corporate debtor, and the dues. Those transactions cannot be referred to claim cross dealings to create pre-existing dispute . 11. It is argued that section 9 application was filed on May 4, 2018 and the arbitration proceedings started on September 26, 2018 with regard to the asset purchase agreement dated July 29, 2015 and it is thus argued that even this fact could not be relied on to state that there is any pre-existing dispute. Counsel stated that MPS is not wholly owned subsidiary of the operational creditor. 12. With regard to section 8 notice, counsel submitted that the fact is not in dispute that section 8 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditor- (a) existence of a dispute, if any, or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute ; (b) the payment of unpaid operational debt- (i) by sending an attested copy of the record of electronic trans fer of the unpaid amount from the bank account of the corporate debtor ; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.-For the purposes of this section, a 'demand notice' means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred. 15. Before Adjudicating Authority or before us, what corporate debtor could do is to show that there is a pre-existing dispute or that the dues are not payable in law or in fact. It is not the case of the appellant-corporate debtor that the corporate debtor was or is ready to pay the dues claimed in default and if section 8 notice had been received, it would have paid the dues and avoided the invoking of the IBC. There is no material ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
