TMI Blog2022 (7) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... he Existence of Dispute, which is good enough to invalidate the Section 9 Application - 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. 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. As far as the present case is concerned that it is latently and patently quite clear that the two Account Statements of the 2nd Respondent/Corporate Debtor and M/s. Vaishnavi Impex were properly kept separately and in the light of foregoing detailed discussions and also this Tribunal considering the fact that the prior to and after issuance of Demand Notice dated 16.03.2020 by the 1st Respondent/Operational Creditor to the 2nd Respondent/Corporate Debtor, the 2nd Respondent/Corporate Debtor had not raised any Dispute in regard to the Goods supplied by the Operational Creditor and in fact, the 2 nd Respondent/Corporate Debtor had admitted the Debt through emails, the 2nd Respondent/Corporate Debtor having utilised the Goods supplied b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the account copy from 2017 to 2018 and 2018 to 2019. The four attachments with the mail are the statements of M/s. Vaishnavi Impex for the years 2017-2018 and 2018-2019 and the statements of M/s. Sindhura Paper Limited for the years 2017-2018 and 2018-2019. A perusal of the same would show that the accounts are separately and clearly maintained for both the Corporate Debtor and M/s. Vaishnavi Impex. The account of the Corporate Debtor would show the closing balance as on 31.03.2018 is Rs.2,38,88,424.50/-. The ledger account of the Operational Creditor which is duly acknowledged by the Corporate Debtor would also show the same amount as a closing balance as on 28.02.2019. Hence, it is clear that by 28.02.2019 there was due of Rs.2,38,86,424.50/- to the Operational Creditor from the Corporate Debtor. With regard to the remaining amount of the claim, invoices pertaining to the said period and also to the period prior to that are filed which are 284 in number and the same are ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r had made the aforesaid purchases. In fact, the ₹ 1st Respondent/Operational Creditor had not mentioned the payments made by the ₹ 2nd Respondent/Corporate Debtor and that so far, for the period from 01.04.2017 to 31.03.2020, the Corporate Debtor had paid a sum 8,64,28,304/- to the ₹ 1st Respondent/Operational Creditor on different dates through bank transactions. 4. According to the Appellant, the ₹ 2nd Respondent/Corporate Debtor for the last several years has been manufacturing and supplying the Kraft Papers and had given its part of the industrial premises on `Lease to `M/s. Vaishnavi Impex for carrying on the similar business operations that of the Corporate Debtor during the Year 2018. In 2018, the 2nd Respondent / Corporate Debtor and M/s. Vaishnavi Impex had received the supplies from the Operational Creditor and that the purchased Bills / Invoices of both the Parties were handed over to the Corporate Debtor as `M/s. Vaishnavi Impex had no separate office staff. 5. It is the stand of the Appellant that the Account s team had erroneously clubbed all the purchases belonging to the `Corporate Debtor as well as M/s. Vaishnavi Impex and rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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 Debit balance had appeared in the Accounts Book. 11. The Learned Counsel for the Appellant submits that Mr. AMV Prasad, Authorised Signatory and Managing Partner of M/s. Vaishnavi Impex was not an Authorised Signatory of the 2nd Respondent / Corporate Debtor had no authority to sign and stamp on the records belonging to the Corporate Debtor. 12. As a matter of fact, the 2nd Respondent/Corporate Debtor had never nominated him as an Authorised Signatory and that he is neither a Director nor any Member of the Corporate Debtor and on that Account, the 2nd Respondent/Corporate Debtor technically never acknowledged the debt on the Ledger Account Statement, as it was not signed and stamped by the Corporate Debtor. Indeed, the 1st Respondent/Operational Creditor had failed to produce any tri-parte agreement among the 2nd Respondent/Corporate Debtor, 1st Respondent/Operational Creditor, M/s. Vaishnavi Impex in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 the Appellant, that there was no Board Resolution passed by the Corporate Debtor in respect of advancing the payments to the 1st Respondent/Operational Creditor on behalf of M/s. Vaishnavi Impex. When minor decisions are taken, the Board shall pass a `Resolution in respect of such payments and as the 1st Respondent/Operational Creditor is to respond with the authenticity of such Board Resolution. 1st Respondent/Operational Creditor s Contentions: 20. According to the 1st Respondent/Operational Creditor, the 1st Respondent/Operational Creditor had preferred C.P. (IB) No. 60/9/AMR/2020 on 25.07.2020 before the `Adjudicating Authority , (NCLT), Amaravati Bench, Hyderabad against the 2nd Respondent / Sindhura Paper Private Limited (Corporate Debtor), among other things mentioning that the 2nd Respondent/Corporate Debtor had committed default as regards the payment of Rs.3,60,11,075 which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erational 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 1st Respondent/Operational Creditor, the management and employees of the 2nd Respondent/Corporate Debtor and M/s. Vaishnavi Impex are one and the same and both are managed by the Managing Director Mr. P. Nageshwara Rao of the 2nd Respondent/Corporate Debtor. Before the Adjudicating Authority , the 2nd Respondent/Corporate Debtor in its Counter had tacidly admitted that the part of the premises which belongs to the Corporate Debtor was leased out to M/s. Vaishnavi Impex. 28. On behalf of the 1st Respondent/Operational Creditor, it is brought to the notice of this `Tribunal that the Managing Director of the 2nd Respondent/Corporate Debtor Mr. P. Nageshwara Rao is also the Managing Partner of the Partnership Firm namely M/s. Vaishnavi Impex and during the Year 2017 the Managing Director of the Corporate Debtor Mr. P. Nageshwara Rao had approached the 1st Respondent/Operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 as under: Total Amount of Goods Supplied by the Operational Creditor to the M/s. Corporate Debtor Total Amount received by the Operational Creditor from the Corporate Debtor Balance Due from the Corporate Debtor to the Operational Creditor for the supplies made to the Corporate Debtor Rs. 11,25,51,454.3/- during the period from 01.04.2017 to 30.11.2019 Rs.7,65,40,378/- Rs.3,60,11,075/- (Rupees Three Crore Sixty Lakh Eleven Thousand and Seventy Five Only) 34. It is the plea of the 1st Respondent/Operational Creditor that the 2nd Respondent had acknowledged the debt on the Ledger Account Statement of the 1st Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n `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 acknowledgement , if it points out with reasonable certainty in respect of the liability in `dispute . 41. An `acknowledgement of `debt can be through a `counter affidavit in earlier `litigation , amounting to an `admission of an `outstanding debt and would not be considered as `mere pleading . Admission: 42. An `admission , being a voluntary acknowledgment made in unequivocal term, is a tangible evidence, against a `Maker , which can be received by a `Tribunal / `Court of Law , as a `Waiver of Proof . Evaluation: 43. An `Application before the `Adjudicating Authority , (National Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Creditor through Chevuri Lakshmi Narayana had addressed an email dated 26.02.2019 to the 2nd Respondent/Corporate Debtor for Accounts confirmation, attaching the Ledger Statements (Account Copy from 01.04.2018 to 26.02.2019) in Vaishnavi Impex and Sindhura Paper Private Limited. 49. The 2nd Respondent/Corporate Debtor, on 21.03.2019 had issued an email along with the Ledger Statement acknowledging the `debt to the 1st Respondent/Operational Creditor (Account Copy for Chevuri Enterprises from 2017 to 2019). Also, that the 1st Respondent/Operational Creditor had filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, wherein it is observed that ``an `acknowledgement of liability leads to an `admission of Corporate Insolvency and Resolution Process , under the I B Code, 2016 . 60. As far as the present case is concerned that it is latently and patently quite clear that the two Account Statements of the 2nd Respondent/Corporate Debtor and M/s. Vaishnavi Impex were properly kept separately and in the light of foregoing detailed discussions and also this `Tribunal considering the fact that the prior to and after issuance of `Demand Notice dated 16.03.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
