2023 (12) TMI 1017 - AT - Insolvency and Bankruptcy

Maintainability of Application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 - delivery of the goods not proved - no reply given to notice issued u/s 8 of IBC - HELD THAT - The Tribunal appears to have been swayed only by a submission made by the Respondent that the Appellant has failed to give the proof of the delivery of goods. There is no discussion in the entire Judgement as to whether the goods were actually taken by the Respondent in its own trucks as stated by the Appellant because it is alleged by the Appellant that the Respondent lifted the goods from the Port to its Plant. Furthermore, various other evidence which may prove the transactions having been taken place between the Parties have not been discussed at all by the Learned Tribunal much less the fact that if no contest is made till the filing of the Petition, whether it can be raised for the first time in the Reply filed to the Application under Section 9 is also a question which requires to be answered. This is one such case in which interference is required for the purpose of looking into the entire evidence by the Tribunal and recording a finding thereafter as to whether the Application has to succeed or to fail. The Impugned Order is set aside. The matter is remanded back to the Learned Tribunal to decide the Application again after taking into consideration the entire evidence on record.

Summary

Issues involved:
The appeal filed by the Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016, against the Corporate Debtor was dismissed by the Tribunal. The key issue revolves around the proof of delivery of goods and whether the Respondent's objection raised for the first time in the Reply to the Application under Section 9 is valid.

Summary of Judgment:

Issue 1: Proof of delivery of goods
The Appellant, engaged in coal import and trading, supplied coal to the Respondent as per Purchase Orders. The Respondent allegedly took delivery of coal from the Port to its Plant using their trucks. The Tribunal dismissed the Application citing lack of proof of delivery. The Appellant argued that the goods were taken by the Respondent in their trucks, supported by emails and delivery details. The Appellant contended that the Tribunal erred in not considering the evidence and solely focusing on the lack of lorry details and delivery challan.

Issue 2: Objection raised by Respondent
The Respondent, in its Reply to the Application under Section 9, objected that goods were not delivered, hence no debt existed. The Tribunal did not address the issue of whether the goods were actually taken by the Respondent in their trucks. The Appellant argued that the Respondent's objection was raised for the first time in the Reply, without contesting the Notice under Section 8. The Tribunal did not discuss other evidence on record, including emails exchanged between the Parties.

Conclusion:
The Appellate Tribunal allowed the appeal, setting aside the Impugned Order. The matter was remanded back to the Tribunal for reconsideration, emphasizing the need to evaluate all evidence on record. The Tribunal was directed to provide findings on the sufficiency of evidence for admitting the Application. The Parties were instructed to appear before the Tribunal for further proceedings on 05.01.2024.