TMI Blog2023 (3) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Mr. Kanthi Narahari ] Member ( Technical ) For the Appellant : Mr. Kanwal Chaudhary , Advocate For the Respondent : Ms. Smitakshi Talukdar and Mr. Rahul Jain , Advocates JUDGMENT Justice Anant Bijay Singh ; The instant Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) has been preferred by the Appellant being aggrieved and dissatisfied by the order 05.07.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Court No. IV, New Delhi) in Company Petition No. IB-1294/ND/2018 whereby petition under Section 9 of the IBC filed by Appellant through Mr. Sunil Kumar Gupta (Manager- Finance accounts in the Appellant Company) with a prayer to initiate the Corporate Insolvency Resolution Process against M/s Callina Care Overseas Pvt. Ltd. (Corporate Debtor) was dismissed holding that there were disputes existing between the parties prior to the issuance of the Demand Notice. 2. The facts giving rise to the instant Appeal are as follows: i) That Respondent Company came to be incorporated on 20.12.1999 under the Companies Act, 1956, having its Register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,50,843.00 479 09.12.2015 2,77,926.00 481 10.12.2015 3,20,047.00 490 12.12.2015 1,61,957.00 Total Form and Invoice Value Rs.11.38,556.00/- iii) The Respondent Company inspite of having acknowledged its liability to pay since was unable to pay its debt, Appellant was constrained to serve Demand Notice dated 01st November, 2017 (Annexure A-8 at page 56 to 63 of the Appeal) upon the Respondent Company under Section 8 of the IBC calling upon the Respondent to pay an amount of Rs. 14,18,462/- thus computing interest @ 24% per annum in terms of the Invoices amounting to Rs. 3,22,278/-. The Demand Notice was duly served upon the Respondent Company vide speed post and Registered post and the same was delivered on 16.12.2017 as per address recorded/reflected on MCA website. As per the tracking report, the item was shown to be delivered on 16.12.2017 however the same was returned with remark Left mentioned on envelope. iv) Further case is that as Respondent/Corporate Debtor failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of its reply nowhere mention as to which goods are being referred to. In none of the emails has it been alleged the goods supplied against Invoices relied upon by Appellant were defective. Moreover, amounts reconciled in terms of ledger was never disputed. Nothing could be ascertained from alleged emails as to if there was any quality or quantity issue with respect to goods supplied in terms of Invoices relied upon by Appellant. The Respondent never sent any Notice nor filed any Suit or Claim against Appellant. The copy of emails dated 07.08.2014, 27.03.2015, 01.02.2016, 25.03.2016 and 08.04.2016 are collectively annexed in the memo of Appeal (Annexure A/12, Colly, at page 85 to 98 of the Appeal). vii) Finally, the Adjudicating Authority heard the submissions on behalf of Appellant and Respondent, and by way of impugned judgment dated 05th July, 2021 rejected the Application/Petition filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 by the Appellant, which led to filing of this instant Appeal. 3. The Ld. Counsel for the Appellant during the course of argument and grounds taken in the memo of appeal submitted that the Adjudicating Authority failed to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uality or quantity issue w.r.t material supplied against the invoices relied upon in present matter. The Respondent has never sent any notice or filed any claim disputing the amount to be due in terms of ledger and therefore by way of reply to Section 9 Application. The Respondent has made a frivolous attempt to raise sham, vague and moonshine defence. Further, in view of judgment of Mobilox Innovation Pvt. Ltd. Vs. Kurusa Software Pvt. Ltd., the Respondent has miserably failed to establish any pre-existing dispute amongst parties to present matter. In view of the above submissions, it is a fit case to remand the matter to Adjudicating Authority to consider afresh the material on record and then adjudicate the controversy. 7. The Ld. Counsel for the Respondent/Corporate Debtor in his Reply Affidavit filed in the instant appeal along with written submissions which was filed before the Tribunal in the matter annexed in the Reply Affidavit submitted that the term dispute under Section 9 of the IBC does not mean mere pendency of litigation but also any form of dispute which is not an illusory or a sham defence. The NCLT cannot examine the intricacies of the dispute or conclude on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly, the Appellant was requested to visit Respondent's factory for verification of the same. By email dated 01.02.2016, the Respondent informed the Appellant that because of delay in supplying the PP Sacks, the foreign customer has reduced the price of the raw material by INR 10/- per kg, by way of damages. Letter dated 25.03.2016 sent by the Respondent's customer stating that the goods supplied by Respondent stands rejected, causing a loss of USD 60030 to the Respondent. This letter was also sent to the Appellant by the Respondent vide email dated 25.03.2016. By email dated 08.04.2016, the Respondent sent two letters to the Appellant. These letters showed that (a) the shipment is rejected by the foreign buyer and (b) because of default on part of Corporate Debtor, Corporate Debtor has sustained a loss of USD 60030, which needs to be reimbursed by the Corporate Debtor. In view of these extensive communications, which were sent by the Respondent to the Appellant, a clear and present pre-existence dispute is apparent on the face of records which is backed by documentary evidence and is not a mere bluster without any documentary support and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res of the authorized signatory and the seal of the Respondent, it is clear that the ledger produced on record is a forged one and cannot be relied upon. There are genuine concerns that have been raised by the Respondent as to the authenticity of the ledger accounts produced by the Respondent and therefore, such ledgers cannot be acted upon. 11. In any event, this Appellate Tribunal in Company Appeal (AT) (Insolvency) No. 57 of 2020, V Padmakumar v. Stressed Assets Stabilisation Fund (SASF) Anr., decision dated 12.02.2020 , has held that representation of debt in financials does not amount to acknowledgement of debt. Therefore, even if the ledger were to be acted upon, they cannot by any means be considered as an acknowledgement of debt. Notwithstanding the above, the ledger is un-dated. There is no date of acknowledgement. The period of ledger is March 2014-01 April 2016. Pertinently, by email dated 08.04.2016, which is after the ledger date, the Respondent sent two letters to the Appellant the Respondent sent two letters to the Appellant showed that (a) the shipment is rejected by the foreign buyer and (b) because of default on part of Corporate Debtor, Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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