TMI Blog2022 (9) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... ditor had assigned the debt to HSBC Bank and HSBC Bank has not instituted this proceeding under Section 9 of the IBC, therefore, taking in the above facts, the Application under section 9 is not maintainable as the reasons assigned by the Adjudicating Authority is cogent and require no interference. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 1274 of 2019 - - - Dated:- 14-9-2022 - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Ms. Shreesha Merla ] Member ( Technical ) For the Appellant : Ms. Nandini Sharma , Advocate For the Respondent : Mr. Krishnaraj Thakkar , Mr. Sounak Sengupta , Ms. Susmita Mahala and Ms. Mandeep Kaur , Advocates JUDGMENT Justice Anant Bijay Singh ; The Appellant prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the usual course of business. Simultaneously with the supply of each trance, the Appellant used to raise its invoice and payments have been made by the Respondents from time to time. The Appellant raised eight Invoices during 2011-12 for supply of goods to the Respondent (Annexure A/2 to A/9 at page 66 to 73 of the Appeal Paper Book.) ii) Further case is that the Respondent vide its email dated 06.09.2012 (Annexure A/10) admitted severe financial crunches including loses caused due to the drop, in retail prices and also the increase in value of dollar and thus, the Respondent could not clear the payments. In the said email, the Respondent set out a repayment schedule pursuant to which they themselves committed to pay off the ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso assured that they will clear up the outstanding (Annexure A/13 at page 78 to 79 of the Appeal Paper Book). v) Further case is that Despite the assurances and commitments, the Respondent did not pay any amount whatsoever to the Appellant and as such, the Advocate of the Appellant issued a notice dated 23.03.2015 (Annexure A/14) under Sections 433 and 434 of the Companies Act, 1956. The Respondent did not reply to the same. Thereafter, the Respondent vide its email dated 25.05.2015 (Annexure A/15) admitted its entire outstanding dues of USD 646,466.60 and agreed to pay the 50% of the outstanding dues of USD 646,466.60 in 6 monthly instalments starting from July 2015 and ending on December 2015 as the Respondent was facing acute financi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised. The Appellant through its Advocates issued a rejoinder dated 12.07.2017 (Annexure A/20) to the reply of the Respondent wherein all frivolous disputes raised on 30.06.2017. viii) The Appellant being the Operational Creditor having an undisputed claim against the Respondent/Corporate Debtor for a sum of USD 646,466.00 filed an Application under Section 9 of the IBC against the Respondent before the Adjudicating Authority and after hearing the parties the Adjudicating Authority vide order dated 15.10.2019 dismissed the Application filed by the Appellant under Section 9 of the IBC. Hence this Appeal. 3. The Ld. Counsel for the Appellant during the course of argument and in his memo of Appeal along with written submissions submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Adjudicating Authority dismissed the application filed by the Appellant under Section 9 on the ground that the Corporate Debtor (Respondent herein) raised the dispute about the operational debt and dispute appears to be bona fide, is erroneous in law, therefore, the impugned order is fit to be set aside and the Appeal be allowed. 6. The Ld. Counsel for the Respondent in his Reply Affidavit along with written submissions submitted that the Ld. Adjudicating Authority has rightly considered the letter dated 01.08.2012 (at page 155 of the Appeal) which is written by HSBC regarding payment of USD 61,073.99 for settlement of Sansing Limited s wherein it is mentioned that the purpose of this letter is to remind you that consequent up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce the same neither before this Appellate Tribunal nor before the Adjudicating Authority purposefully. By an email dated 06.09.2012 the Appellant confirmed the Respondent that with regard to the payment of the said 8 invoices the Appellant needs to communicate with HSBC because the same is not in the hands of the Appellant. However, by a letter dated 30.11.2018, HSBC notified that the right to receive payment of the said 8 invoices had been assigned by the Appellant to HSBC. 9. It is further submitted that the IBC also recognizes assignment and stipulates in sub-Section 20 of Section 5 of the IBC that operational creditor includes a person to whom an operational debt is legally assigned or transferred. Thus, in this case, on assignm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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