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TMI Blog2022 (7) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal'), Amaravati Bench, Hyderabad, while passing the `impugned order' dated 07.03.2022 in C.P. (IB) No. 60/9/AMR/2020, among other things at paragraph I, had observed the following: I. ``Whether the Operational Creditor could prove that the Corporate Debtor has failed to discharge the debt that is due to the Operational Creditor and whether CIRP can be initiated against the Corporate Debtor. There is no dispute that the Operational Creditor used to supply goods to the Corporate Debtor and there is a clear admission in the counter that the Corporate Debtor made the purchases covered by the 284 invoices pertaining to the period from 14.11.2017 to 30.11.2019. The Counsel for the Operational Creditor draws the attention of this Tribunal to the mail dated 26.02.2019 addressed by the Operational Creditor to the Corporate Debtor stating that they have sent their account copy from 01.04.2018 to 26.02.2019 in M/s. Vaishnavi Impex and M/s. Sindhura Papers Limited and called upon them to send their account copy. The said mail was addressed to the Corporate Debtor / Sindhura Paper Limited. In response to the said mail a reply mail was issued on 21.03.2019 stating that they have attached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Operational Creditor as alleged cannot be assumed. Hence, it is clear from the material on record that the Corporate Debtor has incurred a debt of Rs.3,60,11,075/- and defaulted in discharging the same inspite of the demand notice. Hence, the petition is liable to be admitted and as such it is admitted.'' and resultantly `admitted the Company Petition', by appointing Ms. Narala Varalakshmi, as `Interim Resolution Professional' and declared `Moratorium', etc., assailing the propriety, legality and validity of the impugned dated 07.03.2022 in C.P. (IB) No. 60/9/AMR/2020, passed by the `Adjudicating Authority', (NCLT), Amaravati Bench, Hyderabad. Appellant's Submissions: 3. The Learned Counsel for the Appellant submits that it is the specific case of the Rs. 1st Respondent/Operational Creditor' that the claim of Rs.3,60,11,075/- in relation to the period from 14.11.2017 to 30.11.2019 arises out of 284 Invoices and that the 2nd Respondent/Corporate Debtor had made the aforesaid purchases. In fact, the Rs. 1st Respondent/Operational Creditor' had not mentioned the payments made by the Rs. 2nd Respondent/Corporate Debtor' and that so far, for the period from 01.04.2017 to 31.03.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor. Apart from that, it was also alleged by the 1st Respondent/Operational Creditor that the 2nd Respondent/Corporate Debtor had acknowledged the arrangement between M/s. Vaishnavi Impex and the Corporate Debtor in the Ledger Accounts. 8. The Learned Counsel for the Appellant comes out with a plea that the 1st Respondent/Operational Creditor had not filed their Bank Account Statements earlier to 16.03.2020 i.e., the period from where the Invoices were raised or even before. 9. Furthermore, the transactions present in the Bank Account Statements clearly shows that the 1st Respondent/Operational Creditor had received the excess payments from the 2nd Respondent/Corporate Debtor, in respect of the Invoices raised. That apart, the payments made by the 2nd Respondent/Corporate Debtor either in the Accounting period of 01.04.2017 to 31.03.2020 (or) in respect of the claim period from 14.11.2017 to 30.11.2019, both satisfies the value of dues claimed by the 1st Respondent/Operational Creditor. 10. Continuing further, it is the stand of the Appellant that the 2nd Respondent/Corporate Debtor had stopped the Bank transactions after 21.03.2020 with the Operational Creditor as the excess D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorised Signatory Mr. AMV Prasad is the Managing Partner of M/s. Vaishnavi Impex and is limited only to its operations. In fact, the said Authorised Signatory is a `third party' and nowhere connected to the business of the 2nd Respondent/Corporate Debtor, as he is neither a Director / Authorised Signatory nor any related person specifically nominated or appointed by the Corporate Debtor. 17. Furthermore, it is untrue that the 2nd Respondent/Corporate Debtor is a Sister Concern to M/s. Vaishnavi Impex as stated by its Authorised Signatory, the Corporate Debtor never recorded or declared that M/s. Vaishnavi Impex is its Sister Concern. 18. It is the contention of the Learned Counsel for the Appellant that the `Adjudicating Authority' should have examined that the Corporate Debtor technically never acknowledged the debt on the Ledger Account Statement, as it was not signed and stamped by the Authorised Signatory of the Corporate Debtor and that the signatures present in the said letter and Ledger Statement belongs to Mr. AMV Prasad, Managing Partner / Authorised Signatory of M/s. Viashnavi Impex who is technically not connected to the Corporate Debtor. 19. It is the submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of `admission' itself and noticed their contentions. Apart from that, the Auditor of the 2nd Respondent/Corporate Debtor had declared the Debit balance of Rs.2,47,97,175.50 and issued a Certificate dt. 03.12.2020 mentioning that the debit balance Rs.2,47,97,175.50 was in excess of the credit balance. 25. The stand of the 1st Respondent/Operational Creditor is that the 2nd Respondent/Corporate Debtor had miserably failed in making payments to it for the Invoices commencing from 14.11.2017 to 30.11.2019 and the `Operational Debt' fell due from 14.11.2017 and that the amount of `Default' was Rs.3,60,11,075/- (Rupees Three Crores Sixty Lakhs Eleven Thousand and Seventy Five Only). 26. Moreover, according to the 1st Respondent/Operational Creditor, the obligation of the 2nd Respondent/Corporate Debtor to pay the Operational Debt as per the Invoices raised by the 1st Respondent/Operational Creditor is governed by Section 37 of the Indian Contract Act, 1872. Apart from this, the 2nd Respondent/Corporate Debtor according to the 1st Respondent/Operational Creditor had not given any notice pertaining to a `Dispute' of the `Unpaid Operational Debt' 27. It is represented on behalf of the 1s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that in respect of the period from 11.02.2018 to 21.12.2019, the 1st Respondent/Operational Creditor had supplied goods worth Rs.8,36,00,143/- to M/s. Vaishnavi Impex and that the Operational Creditor received part payments to the tune of Rs.8,26,48,867/- towards supply of goods and ultimately, M/s. Vaishnavi Impex fell in due of Rs.9,51,276/- to the Operational Creditor. 32. The Learned Counsel for the 1st Respondent/Operational Creditor adverts to the fact of particulars of the payments made by the 2nd Respondent/Corporate Debtor on behalf of M/s. Vaishnavi Impex to the Operational Creditor under: Total Amount of Goods Supplied by the Operational Creditor to the M/s. Vaishnavi Impex Total Amount received by the Operational Creditor from the bank account of M/s. Vaishnavi Impex Total Amount received by the Operational Creditor from the bank account of Corporate Debtor on behalf of M/s. Vaishnavi Impex Rs.8,36,00143/- Rs.2.27,69,299/- Rs.5,88,23,078/- 33. Besides the above, according to the 1st Respondent/Operational Creditor, the details of payments effected by the Corporate Debtor to the Operational Creditor for the Goods supplied to the 2nd Respondent are described ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd Respondent/Corporate Debtor is a heavy debt owned company and the numerous Petitions are pending before the Adjudicating Authority and its `Solvency Ratio' is much below the `Potential Solvency Ratio'. Furthermore, according to the 1st Respondent/Operational Creditor it has proved the `Existence of Debt' as well as the `Occurrence of Default' and the `Amount' so claimed by the 1st Respondent/Operational Creditor is payable in `Law' by the 2nd Respondent/Corporate Debtor. Acknowledgement of Liability: 39. It is to be pointed out that in `Law', an `acknowledgement' is to be an `unqualified one'. An `acknowledgement' must be an `existing liability', as per decision Kandasami V Suppammal 45 Madras Page 443. An `acknowledgement' must point out the jural relationship as that of `Debtor' and `Creditor' between the `Parties'. 40. An `unconditional acknowledgement', is held to imply a `promise to pay' as per decision Hiralal V Badkulal, reported in AIR (1953) SC, Page 225. In short, an `acknowledgement', must relate to `definite liability'. An `acknowledgement', does not create a `new contract'. To put it precisely, an `acknowledgement to whomsoever made', is a `valid acknowledgemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent/Operational Creditor's Firm directly from their Accounts and had requested the 1st Respondent/Operational Creditor to credit their Account for receipts whichever it was received from 2nd Respondent / Corporate Debtor by the 1st Respondent/Operational Creditor. 46. Before the `Adjudicating Authority', the 1st Respondent/Operational Creditor had filed a copy of Ledger Statements of M/s. Vaishnavi Impex, maintained by it. Further, the details of payment made to the 1st Respondent/Operational Creditor from the Bank Account of Corporate Debtor and M/s. Vaishnavi Impex for the goods supplied to M/s. Vaishnavi Impex was also filed in the form of Ledger Account beginning from 01.04.2017 to 31.03.2018 (8 pages) before the `Adjudicating Authority' in CP (IB)/60/9/AMR/2020. 47. The 1st Respondent/Operational Creditor had also filed the details of payments made to the 1st Respondent/Operational Creditor from the Bank Account of the 2nd Respondent/Corporate Debtor for the goods supplied to the Corporate Debtor (vide Ledger Account 01.04.2019 to 31.03.2020 of the 2nd Respondent/Corporate Debtor (Sindhura Paper Private Limited). 48. It is evident that the 1st Respondent/Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage, about the `Existence of Dispute', which is good enough to invalidate the Section 9 `Application'. 55. It is to be remembered that the `Dispute' and/or the `Suit' or `Arbitration Proceedings', must be `pre-existing', it must exist before receipt of `Demand Notice' or `Invoice'. 56. In the instant case, it is pertinently pointed out by this `Tribunal' that the 2nd Respondent/Corporate Debtor had not issued any `Reply' to the `Demand Notice' dated 16.03.2020, issued by the 1st Respondent/Operational Creditor. 57. As a matter of fact, the 1st Respondent/Operational Creditor before the `Adjudicating Authority' had claimed only the `Balance Amount' after the adjustment. The fact that the 2nd Respondent/Corporate Debtor and M/s. Vaishnavi Impex are managed by one and the same is not denied. 58. As long as the `Dispute' is not a `spurious' or an `illusory' or `hypothetical one', the `Adjudicating Authority' is to admit the Section 9 Application filed by the `Petitioner/Applicant/Operational Creditor'. 59. At this juncture, this Court worth recall and recollects the decision of the Hon'ble Supreme Court in N. Subramanian V Aruna Hotels Limited, reported in 2021, 164 CLA 364, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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