TMI Blog2020 (8) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... - COMPANY APPEAL (AT) (INSOLVENCY) No. 214 of 2020 - - - Dated:- 20-8-2020 - (Justice Jarat Kumar Jain) Member (Judicial) , (Mr. Balvinder Singh) Member (Technical) And (Mr. V. P. Singh) Member (Technical) For the Appellant : Mr. Sakal Bhushan, Advocate for the Appellant. For the Respondent : Mr. Sanjiv Sen, Advocate for Respondent No.1 Mr. Atul Sharma, Advocate for Respondent No. 2 JUDGMENT Jarat Kumar Jain. J The Appellant Gaurang Nipinbhai Nagarsheth, Ex- Director/Shareholder of Poggenamp Nagarseth Powertronics Pvt. Ltd. (Corporate Debtor) filed this Appeal under Section 61 of Insolvency Bankruptcy Code (In Short I B Code) against the Order dated 22nd January, 2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal) Ahmedabad Bench, in CP No. (IB)/268/09/NCLT/AHM/2018, whereby admitted the Application under Section 9 of I B Code. 2. Brief facts of this case are that Poggenamp Nagarseth Powertronics Pvt. Ltd. Respondent No. 2 (herein after referred as Corporate Debtor) and POSCO-India Pune Processing Centre Pvt Ltd. Respondent No. 1 (herein after referred as Operational Creditor) have regular business transactions between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor has defaulted in payment of debt as on 30.04.2018 a sum of ₹ 16,08,45,996/-. Hence, admitted the Application and the moratorium is declared in terms of Sub-Section (1) of Section 14 of I B Code. Being aggrieved with this order, the Appellant Being Ex-Director/Shareholder of the Corporate Debtor has filed this Appeal. 6. Learned Counsel for the Appellant submits that ₹ 2,75,00,000/- paid by the Corporate Debtor between December, 2015 to August, 2017 which had been adjusted by the Operational Creditor towards the interest contrary to the terms of the letter dated 03.06.2015. In this regard, the Corporate Debtor sent emails from 29.01.2016 to 21.09.2016 and thereafter, the Corporate Debtor vide letter dated 02.03.2017, email dated 12.09.2017 and 09.11.2017 demanded copy of ledger. However, the Operational Creditor has not resolved dispute. Thus, the Corporate Debtor had raised plausible dispute much prior to the notice dated 11.05.2018 under Section 8 I B Code, which clearly satisfied the test laid down by the Hon ble Supreme Court in the case of Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. (2018) 1 SCC 353. 7. Learned Counsel for the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute at this stage. The objection raised by the Corporate Debtor imaginary and not supported by any document whereas the document produced by the Operational Creditor are enough to establish debt due and payable. 12. In such circumstances, no interference is called for in the detailed and well-reasoned order of the Ld. Adjudicating Authority. 13. We have heard Learned Counsel for the Parties and gone through the record. 14. The question for consideration is whether the Corporate Debtor has raised a plausible dispute before Service of Notice dated 11.05.2018 under Section 8 of I B Code. 15. According to the Appellant the Corporate Debtor has raised dispute through emails and letters sent to the Operational Creditor before receiving statutory Notice. 16. For appreciating the arguments, we have minutely examined the exchange of emails and letters between the parties. The Corporate Debtor sent emails dated 29.01.2016, 26.08.2016, 31.08.2016, 16.09.2016 and 21.09.2016 and asked the Operational Creditor for providing copy of ledger for reconciliation of their Account books. Material emails and letters between the parties are considered. 17. On 11.09.2017, the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Seventy-Five Lakh Only) as on 31st October, 2017, has been paid by you towards the outstanding Interest, as against the Outstanding Interest of ₹ 53,494,481/- (Rupees Five Crores Thirty- Four Lakh Ninety-Four Thousand Four Hundred and Eighty-One Only) as on 31st October, 2017. 20. The Corporate Debtor has replied the letter through email dated 09.11.2017, relevant portion as under:- Your allegations are baseless and we totally deny any life threatening threats to Mr. Lee. It was purely heated arguments to the behaviour of Mr. Lee who did not respond to my calls on supply of material and was not understanding our position and asking for overdue from us. We also have a claim along with interest on you which we are expecting to get resolved simultaneously with your outstanding as both are interlinked. Regarding our claim and your dues since both are corelated, interlinked and have arisen from our JV clauses. You are requested to have an urgent meeting with us to sort this out which we have been repeatedly requesting to you. 21. With the aforesaid exchange of correspondence, it is apparent that the Respondent No. 1 (Operational Creditor) has informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement between the parties in that regard. 24. Now, we have considered whether the dispute raised in reply to the Application is a plausible dispute. In this regard, it is useful to refer the Judgment of the Hon ble Supreme Court in the case of Mobilox Innovations (Supra) in which it is held that:- It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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