TMI Blog2023 (5) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... e Cr. PC which proceedings were initiated subsequent to receipt of Demand Notice. Application under Section 9 was to be considered and decided on the basis of material which was brought by the Operational Creditor with regard to its debt and default and the Adjudicating Authority being satisfied that there is debt which remained unpaid, no error has been committed by the Adjudicating Authority in admitting Section 9 Application. There are no error in the order of the Adjudicating Authority admitting Section 9 Application. There is no merit in the Appeal, the Appeal is dismissed. - Company Appeal ( AT ) ( Insolvency ) No. 816 of 2022 - - - Dated:- 11-4-2023 - [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For the Appellant : Mr. Srijan Mehrotra , Advocate For the Respondent : Mr. Avtaar Singh, Advocate for R - 1 Mr. Sandeep Kumar, Advocate for R - 2 JUDGEMENT ASHOK BHUSHAN , J : 1. This Appeal by a Suspended Director of the Corporate Debtor has been filed challenging the Order dated 27th April, 2022 passed by the National Company Law Tribunal, Allahabad Bench, Prayagraj (hereinafter referred to as The Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom M/s. Harsh Trading Company. v. Section 9 Application was replied by the Corporate Debtor reiterating its stand that amount due to the Operational Creditor has been adjusted by payment made to M/s. Shiv Shakti International, Sirsa and M/s. Harsh Trading Company which are sister concern of the Operational Creditor. It was pleaded that the aforesaid payments were made by the Corporate Debtor on the instruction of Mr. Sheetal Garg, Director of the Operational Creditor who was managing the affairs of all the three entities. vi. The Adjudicating Authority after hearing the parties, by the Impugned Order dated 27th April, 2022 admitted Section 9 Application finding that debt is owed by the Corporate Debtor and corporate debtor defaulted in making the payment of debt. vii. Aggrieved by the order dated 27th April, 2022, this Appeal has been filed. 3. Learned Counsel for the Appellant challenging the Impugned Order submits that no amount is due to the Operational Creditor by the Corporate Debtor. In the Reply to Demand Notice, it was categorically stated that as per instruction received from Mr. Sheetal Garg, Director of the Operational Creditor, Corporate Debtor made payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Case against Mr. Sheetal Garg has been stayed by Hon ble Allahabad High Court vide order dated 25.01.2021, hence no credit can be taken of said proceedings by the Appellant in the present proceedings. 5. We have considered the submissions of Learned Counsel for the Parties and have perused the record. 6. From the pleadings of the parties, which was before the Adjudicating Authority, it is clear that there is no denial by the Corporate Debtor of entitlement of the Operational Creditor of its dues of Rs. 65,36,488/- arising out of five invoices as claimed by the Operational Creditor in its Section 9 Application. The defence which was taken by the Corporate Debtor in its Reply to Section 8 Notice as well as Counter Affidavit to Section 9 Application is that the said amount stood paid to two entities which were under the same management i.e. M/s. Harsh Trading Company and M/s. Shiv Shakti International, Sirsa hence the dues of Operational Creditor stood squared off. The defence of the Corporate Debtor is that the said payments were made by the Corporate Debtor on instruction of Mr. Sheetal Garg who was managing the Operational Creditor as well as those two entities. Two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt liability arose on account of five invoices which were issued by the Operational Creditor during the period 11th July, 2016 to 09th September, 2016 that is for the financial year 2016-17. It is also relevant to notice that another entity mentioned in Item No. 35 is M/s. Rishabh Texco Pvt. Ltd., Ahmedabad where Trade Payables are mentioned as Rs. 78,25,916/-. In the same balance sheet under Note 10 Heading Trade Receivables - M/s. Harsh Trading Company and M/s. Shiv Shakti International, Sirsa have been mentioned. Note 10 of the Balance Sheet is as follows: NOTE 10 TRADE RECEIVABLES 2017 AMOUNT 2016 AMOUNT 1 . - ... . . - 4 M/S HARISH TRADING CO. 3,360,000.00 - .. 8 M/S SHIV SHAKTI INTRIONATIONAL, SIRSA 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Sale Deed dated 18.04.2007 and some part of these lands is mentioned in the name of Saurabh Gupta S/o Shri Subhash Gupta in khasra Numbers 1090/2 area Bigha 10 Biswa Pukhta and area 1092/2, area 10 Biswa Pukhta, Khasra Numbers 1091/2, 2092/2, 1097/6, 1103/4, 1104/7 and 1106/1 situated at Village Kheri, Shikohpur, Zadid Musthaqam, Pargana Bhagwanpur,Teshil Roorki, District Haridwar, Uttaranchal, in other words, the First Party has been the owner of 12.5% of total 192 Bigha land which is equivalent to 24 bigha. We have the right to sell, Mortage etc. of this property. We the First Party have agreed to sell our share of this property without trees to the Second Party Sh. Ashok Jain and Shree Sheetal Garg at the rate of Rupees, 3,50,000/- (Rupees Three Lacs Ffity Thousand only) Per Bigha and the First Party has received Rupees 80,00,000/- (Rupees Eighty Lacs only) as advance from the Second Party vide this agreement by way of adjustment of liability of first party to the extent of Rs. 40,00,000/-, due to Sh. Ashok Jain in respect of his firm M/s. Rishabh Texco Prviate Limited, Ahmedabad (Gujrat) and in the same way Rs. 40,00,000 has been received by the First Party by way o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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