9911796707
TMI Blog2022 (4) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... The Appellant has preferred this Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) being aggrieved and dissatisfied by the order dated 17.07.2020 in I.A. No. 2387 of 2020 in Company Petition No. (IB) 64/PB/2017 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), New Delhi, Principal Bench whereby and where under the I.A. No. 2387 of 2020 has been dismissed by the Ld. Adjudicating Authority holding that the claim is not maintainable against the Corporate Debtor. 2. The facts giving rise to this Appeal are as follows: i) Vide Order dated 01.05.2019, the Hon'ble National Company Law Tribunal directed that the Corporate Debtor, "M/s Shilpi Cables Technologies Limited" to be liquidated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; TOTAL 13,45,000.00 iv) Further case is that the Appellant, for and on behalf of the Corporate Debtor, made advance payments of USD 5,88,750 through Citibank NA Hong Kong on 14.09.2016 and USD 4,35,000 & USD 1,80,000 on 19.09.2016 & 19.10.2016 respectively through DBS Bank (Hong Kong) Ltd. to the supplier's designated account at Hong Kong. Therefore, the Appellant made the total payment of USD 12,03,750 on behalf of the Corporate Debtor (Annexure- 3 at page 51 to 57 of the Appeal). v) The supplier has further raised a claim of USD 1,41,250 upon the Appellant under the said contract by way of debit note and the Appellant is under contractual obligation under the laws of Hong Kong to make the payment of said debit note to avoid a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt via E-mail dated 27.11.2019 (Annexure-60 of the Appeal) sent a reminder for the settlement of claim. However, no reply has been received from the liquidator. x) The Liquidator, vide E-mail dated 31.01.2020, required the Appellant to submit documents which are detailed as under: " 1. The claim documents (i.e. Form C, Affidavit and Board resolution) should bear company's seal. Request you to affix the seal and re-share the documents. 2. Please share a government-issued photo ID of Mr. Rohtash Kumar (authorized signatory). 3. The supporting documents against the claim amount provided alongwith the claim form are Proforma Invoices." Thereafter, the Liquidator via E-mail dated 28.02.2020 (Annexure -7 Colly, at page 61 to 62 of the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the Appellant for and on behalf of the Corporate Debtor made advance payments of USD 5,88,750 through Citibank NA Hong Kong on 14.09.2016, USD 4,35,000 on 19.09.2016 and USD 1,80,000 on 19.10.2016 through DBS Bank Hong Kong Ltd. in supplier's designated account at Hong Kong. Therefore, the Appellant made a total payment of USD 12,03,750 on behalf of the Corporate Debtor. The said payments made on behalf of Corporate Debtor were well within the knowledge of the Directors of the Corporate Debtor. 5. It is further submitted that the Appellant filed an Application bearing I.A. No. 2387 of 2020 before the Hon'ble NCLT under Rule 11 of NCLT Rules, 2016 to direct the liquidator to accept, settle and pay the claim of USD 6,45,850.33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant. 9. It is further submitted that being aggrieved by the Appellant filed an Application i.e. I.A. No. 2387 of 2020 in Company Petition No. (IB)/64/PB/2017 for seeking directions to accept, pay and settle the claim of USD 645,850.33 to the Appellant (being the 40% of invoice value, i.e. USD 538.208.61 along with 8% interest, i.e. USD 107,641.72). 10. It is further submitted that instead of filing Appeal of the aforesaid claim the Appellant had filed Application which was rightly dismissed by the Ld. NCLT vide order dated 17.07.2020. 11. It is further submitted that the Appellant had neither filed any claims pursuant to the commencement of the Corporate Insolvency Resolution Process or under the liquidation process, until such tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quidator. The said I.A. was dismissed by the Adjudicating Authority on 17.07.2020. The Appellant did not prefer the separate Appeal against the order of the Liquidator and filed I.A. No. 2387 of 2020 which according to us is not maintainable. It is also an admitted fact that the Appellant did not file any claim during the Corporate Insolvency Resolution Process only after receipt of S3G demand notice, the Appellant filed its claim form (Form 'C') as the Operational Creditor of the Respondent. The Insolvency and Bankruptcy Code stipulates a time bound Resolution Process. Keeping in view the ratio of the Judgment passed by Hon'ble Supreme Court in the case of "Ebix Singapore (P) Ltd. Vs. Educomp Solutions Ltd. (CoC), (2022) 2 SCC 401", we a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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