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TMI Blog2023 (5) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant suspended director of the Corporate Debtor Sigma-C Infrastructure Private Limited has filed this Appeal challenging the admission order. 2. Brief facts of the case necessary to be noted for deciding this Appeal are :- (i) The Corporate Debtor Sigma-C Infrastructure Pvt. Ltd. issued purchase order for supply of 145 KV 9-Bay DBB GIS Board required for CESC's Princep Street Substation. Three purchase orders were issued by the Corporate Debtor for supply of GIS Board and other equipment as prince street substation of CESC Limited. The purchase orders were amended from time to time, lastly amended on 25.01.2018 and 15,05,2018. In pursuance of three purchase orders, the equipment was supplied by the Operational Creditor against the purchase orders. The Operational Creditor has only received amount of Rs. 81,33,600/-. Operational Creditor issued tax invoice dated 16th May, 2018. All materials were received by 30th May, 2018. Outstanding amount as per invoice was Rs. 7,43,21,225/-. Operational Creditor followed for payment and issued letters dated 25.09.2018, 03.10.2018, 11.10.2018 and 12.10.2018 and lastly on 31.10.2018. (ii) The Corporate Debtor assured for making payment ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Petition has not been duly signed and verified by the competent person hence deserved to be rejected on this ground. It is submitted that there was no dispute regarding delivery of goods between the parties nor at any point of time, any such issue was raised by the Corporate Debtor and for the first time, pleas regarding non-submission of proof of service of goods has been raised whereas the Reply itself contains contradictory pleading. The plea of non-delivery of goods is belied by own pleadings of the corporate debtor that supply of the goods was defective. It is submitted that the Operational Creditor has sent several letters requesting for payment of balance amount and has also personally met the Corporate Debtor but at no point of time, any communication was sent by the Corporate Debtor raising any issue regarding non-delivery of goods. The delivery of goods was made to the consignee i.e. CESC Limited which details of consignee is mentioned in the tax invoice. The goods were delivered to the consignee which was utilized for CESC Princep Substation and at no point of time, consignee CESC Limited informed the Corporate Debtor or the Operational Creditor about nondelivery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... United Bank of India v. Sh. Naresh Kumar and Ors. held that "procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. ......... As a company is a juristic entity, it can duly authorize any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorized to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the Appellant is that the Operational Creditor did not file any proof of delivery of goods along with Section 9 Application where it was onus on the Operational Creditor to bring on record the proof of delivery of goods. Learned Counsel for the Appellant however does not raise any argument regarding non-service of Section 8 Notice, looking to the fact that although Operational Creditor did not file any proof of service of Section 8 notice along with Section 9 Application but supplementary affidavit was filed before the Adjudicating Authority bringing on record the proof of service of Section 8 Notice. 9. The Appellant having raised the issue that Operational Creditor failed to prove delivery of goods, we need to examine the submission. 10. Section 8 Notice was issued by the Operational Creditor dated 26.10.2020 where in the column "Particulars of Operational Debt", following statement has been made in clause '(d)': "the equipment was duly received by the Corporate Debtor from the Operational Creditor, without any dispute or demur." 11. In section 9 Application also, the Operational Creditor in the synopsis itself stated as under: "the equipment was duly received by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letters to the Corporate Debtor requesting for payment of the outstanding amount. Letter dated 25th September, 2018 which is part of Section 9 Application is as follows: "Ref: 3100072039 Date: 25th of September, 2018 To, Sigma-C Infrastructure Pvt. Ltd. 52A, Shakespeare Sarani, Suite 501 & 502, 5th Floor, Kolkata - 700017, West Bengal, India Kind Attn: Mr. Ashok Bhasin Sub: Request for release of outstanding payment against Supply of 145 KV 9-Bay DBB Board A/C CESC Princep Street Substation. Ref: 1) P.O No. SCIPL/ABB/160831 dated 31st August, 2016. 2) Amendment Ref. No. SCIPL/ABB/180125 dated 25th January, 2018. Dear Sir, With reference to above Purchase Order and Amendment, we would like to draw your kind attention that an amount worth Rs. 74,321,225/- against our Invoice No. 182401001946 dated 16th May, 2018 towards 90% of the contract value along with taxes and duties has already fallen overdue for payment on 30th August, 2018. As per the Terms of the Purchase Order 90% of the contract value along with taxes and duties is payable in 90 days and all the materials were received by you on 30th May, 2018 as per copy of receipted L/Rs enclosed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressing the financial trouble we are facing, you have not yet released our supply payment of Rs. 74,321,225/-. During our follow up visits to your office we were given the assurance of payment by you latest by 20th September, 2018. We consider this as a serious breach of contract terms and hence we are compelled to take this action. Our Service Engineer's Team will again be mobilized at site after receipt of above supply payment. Thanking you, Yours Faithfully For ABB India Limited (Jayanta Nandy) Regional Sales Director, Zone East" 17. The above correspondence which was at the relevant time between the parties indicate that there was clear statement in the Letter dated 25.09.2018 that all the materials were received by 30th May, 2018 and Corporate Debtor was informed that ABB Service Engineer's Team which was posted at the substation is being withdrawn. It is very relevant to notice that at no point of time prior to filing reply to Section 9 Application, corporate debtor issued any such letter or complaint informing the Operational Creditor about non-delivery of goods. The tax invoice which was noticed above clearly contains the details of vehicles with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fective. There was delay and default committed by the petitioner. Nothing is due and payable to the petitioner. As such, question of payment of any interest does not and cannot arise. k) The petitioner has relied upon purported tax invoices in the petition on account of alleged supplies made and/or alleged services rendered. The petitioner has not been able to prove that the materials as ordered under the supply contract has been supplied by the petitioner. There are no supporting documents or proof of dispatch of the consignment. In the absence of such supporting document, the purported petition cannot be admitted. The respondent denies that any material as per the purchase order placed by the respondent has been supplied by the petitioner." 21. The pleading in paragraph 3(i) states that the work executed by the Appellant was defective and delay and default was committed itself bely the submission of Appellant that goods and materials were never supplied. In paragraph 3(k), the Appellant has stated that Operational Creditor has not been able to prove that as materials ordered under Supply Contract has been supplied. 22. There is one more relevant fact which need to be notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances which have been brought on record clearly prove that the plea of the corporate debtor that goods and materials were not supplied was clearly dishonest plea and moonshine defence. 24. It is also relevant to notice that the goods were supplied to the consignee CESC Limited and goods were used at substation of CESC Limited where engineer's team of the Operational Creditor was posted to complete the installation. No material on behalf of consignee has been brought by the Corporate Debtor to indicate that at any point of time consignee on whose substation the materials were supplied, raised an issue or complaint regarding non-supply of goods. 25. Learned Counsel for the Appellant in support of his submission that burden of proof was at the Operational Creditor to prove that goods and materials were supplied, has relied on two Judgements of Hon'ble Supreme Court in (2006) 5 SCC 558, Anil Rishi Vs. Gurbaksh Singh and (2011) 12 SCC 220, Rangammal Vs. Kuppuswami & Anr. 26. Both the above judgements were considering the provisions of Section 101, 102 and 106 of the Indian Evidence Act, 1872. The observations made by the Hon'ble Supreme Court were in context of burden o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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