TMI Blog2022 (7) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority as per the amended notification. Hence, the stand of the Appellant that the application is not in accordance with the notification dated 07.12.2016 does not hold any merit. Even prior to filing of application by the Respondent in the month of May, 2019, the Respondent issued a demand notice in Form-3 dated 13.03.2019 demanding a sum of Rs.1,77,15,636/-. In the demand notice at serial no. 6 the Respondent clearly mentioned the MoU dated 13.02.2016. The Appellant / Corporate Debtor issued a reply dated 22.03.2019 through their advocate stating that the signatures on the MoU and cheques obtained forcefully by threatening the Appellant. From the perusal of the application filed by the Respondent at Column 2 of Part-IV, the amount claimed as Rs.1,77,15,636/- due from 04.04.2016 to 04.03.2019. At Part-V, Column 8 the Respondent mentioned the invoices raised by the Respondent/operational creditor and relied upon MoU and dishonoured of cheques and filing of C.P. No. 186 of 2016 before Hon ble High Court. Even otherwise, for the purpose of limitation it is seen from the demand notice and from the Application filed under Section 9 by the Respondent before the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under IBC is not maintainable being time barred and on the ground of pre-existence of dispute namely pending civil suits on the alleged claims. 4. The Learned Senior Counsel further submitted that the Respondent promised to take back the inferior quality material but even after repeated requests and reminder the Respondent did not comply with the same and never claimed the amounts as they were aware of the inferior quality of supply. However, to the dismay of the Corporate Debtor the Respondent started demanding payment for the invoices raised during the year, 2015-2016 to the tune of Rs.1,77,15,636/-. The Respondent called the Appellant to their office to negotiate for settlement and with a good intention to settle the issue, the Appellant went to the Respondent s office. However, to the dismay of the Appellant, a pre-drafted MoU dated 13.02.2016 was given to the Appellant and was made to sign under coercion. The Appellant was made to agree and sign the terms and conditions of the MoU under such circumstances. The Respondent also obtained blank cheques from the Appellant and presented the same before the bank for honouring. On being not honoured of the cheques, the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w documents and alleges notice issued under Form-3 dated 13.03.2019 which was sent by the Respondent to Corporate Debtor and a reply dated 22.03.2019 was issued by the Corporate Debtor to the said demand notice. However, the reply of the Corporate Debtor dated 22.03.2019 was not filed by the Respondent and claims that the same was misplaced in the file. The Appellant clearly stated that the notice which was sent is not in order and no documents were annexed along with the notice as stipulated in Section 8 of the IBC. The Corporate Debtor informed about the pre-existing disputes since various suits are pending between the parties. 8. The Learned Senior Counsel relying upon judgment of the Hon ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. in which it was held that notice under Section 8 of the IBC is a mandatory provision and the requirement should be complied with prior to filing an Application under Section 9 of the Code without which application is liable to be dismissed. The Learned Senior Counsel further submitted that the Corporate Debtor never accepted the debt claimed by the Respondent and repeatedly contended that the MoU dated 13.02.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r winding up of a Corporate Debtor under Sections 433, 434 and 439 of the Companies Act, 1956. However, the said Application was transferred to the Hon ble Adjudicating Authority from the Hon ble High Court on 07.06.2018 in view of Rule 5 of Companies (transfer of pending proceedings) Rules, 2016 vide notification dated 07.12.2016, which was further amended on 29.06.2017 w.e.f. 16.06.2017. 13. The Learned Counsel submitted that the Rule 5 of the notification dated 07.12.2016 which was referred by the Learned Senior Counsel for the Appellant, the same has been repealed and amended on 29.06.2017 w.e.f. 16.06.2017. Therefore, the said Rule 5 of the notification dated 07.12.2016 is not applicable. It is submitted that the Respondent filed Application under Section 9 of the I B Code, 2016 before the Adjudicating Authority in the month of May, 2019. The Respondent issued a demand notice under Section 8 of the I B Code on 13.03.2019 to which the Corporate Debtor replied on 22.03.2019. It is submitted that the debt fell due on 04.04.2016 and Section 9 Application was filed in the month of May, 2019 is within the limitation period of 3 years. Therefore, the application filed by the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make payment of Rs.1,77,15,636/-. It is also stated that the cheques deposited and the same have been returned unpaid with endorsement stop payment on 04.04.2016. The details of cheques, and the dates, the amounts have been given in a tabular column at para 4 of demand notice. The Appellant through its Advocate issued reply dated 11.05.2016 whereby it is stated that the alleged MoU and the issue of blank cheques were taken forcibly from the Appellants. Thereafter, the Respondent filed Company Petition before the Hon ble High Court at Hyderabad for winding up of the Company. 18. The Learned Counsel for the Appellant vehemently contend that as per the notification dated 07.12.2016 issued by the Ministry of Corporate Affairs, that the applications have to be filed within 60 days from the date of notification i.e. 07.12.2016 before the Tribunal (NCLT) and submitted that the Respondent failed to file the same before the NCLT within 60 days from the date of notification. However, the Learned Counsel for the Respondent submitted that the said notification dated 07.12.2016 has been amended on 29.06.2017 w.e.f. 16.06.2017. The said Rule 5 as amended is extracted as under: 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equence of events, it is evident that the debt and default has been proved and the Adjudicating Authority rightly admitted the Application in accordance with law. This Tribunal does not find any illegality or infirmity in the order passed by the Adjudicating Authority. The citations relied upon by the Learned Senior Counsel for the Appellant is not applicable to the facts of present case. The Hon ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. (Civil Appeal No. 9405 of 2017) held that the Adjudicating Authority is to see that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. In the present case, the Appellant had failed to produce any kind of evidence in support of their allegations with regard to coercion. Therefore, in view of the judgment of the Hon ble Supreme Court (supra), it is reiterated that the Appellant has miserably failed to prove the allegations as made. 23. For the aforesaid reasons this Tribunal comes to a resultant conclusion that the appeal is devoid of merit on all aspects and liable to be dismissed. Accordingly, the same is dismissed. No orders as to costs. - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
