9911796707
TMI Blog2021 (5) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is only when they received a statutory notice that they filed a Civil Suit against the Operational Creditor. It cannot be held that there was any dispute in regard to the transaction in question. It seems that in order to avoid the liability, the Corporate Debtor through its reply to notice, tried to impress that there was a pre-existing dispute. The Civil Suit has been filed after receipt of statutory notice, therefore, such Civil Suit cannot be treated as existence of dispute - the Corporate Debtor has failed to prove any pre-existing dispute in regard to transaction in question. Whether the impugned order is passed in contravention of Rule 152, Rule 150 and Rule 89 of the NCLT Rules 2016? - HELD THAT:- It is an admitted fact that the NCLT Bench, Ahmedabad consisted of Shri H. P. Chaturvedi Member (Judicial) and Shri Prashanta Kr. Mohanty Member (Technical) who heard the application and reserved for orders on 20.11.2019. Thereafter, the parties have filed their written submission on 06.01.2020 and the impugned order was pronounced by the same Bench on 28.05.2020. Meanwhile, vide order dated 12.05.2020 and 30.04.2020 these members have been transferred. However, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifications to the Corporate Debtor s factory at Jamner District, Jalgaon, Maharashtra and issued 20 invoices from 28.10.2016 to 02.11.2016 for a total amounting to ₹ 15,73,279/-. The Corporate Debtor has not made any payment for supply of goods against the aforesaid invoices. As per the terms of the agreement, the Corporate Debtor is also liable to pay interest @ 30% p.a. from the date of default till date of actual payment. The Corporate Debtor is liable to pay the principal amount 15,73,279 plus interest amounting to ₹ 5,84,421.38 up to 31.01.2018, the total of which amounts to ₹ 21,97,700.38/-. The Corporate Debtor failed to pay the dues; therefore, the Operational Creditor issued a demand notice on 05.02.2018, which was delivered to Corporate Debtor on 08.02.2018. The Operational Creditor received a reply to the notice from the Corporate Debtor on 19.02.2018 which expressed complete denial of Operational Debt. Instead, the Corporate Debtor demanded an amount of ₹ 4,44,17,438/- towards damage and loss caused to them. Therefore, the Operational Creditor on 30.07.2018 filed an Application under Section 9 of the IBC against the Corporate Debtor. 4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anty) were transferred with immediate effect vide separate orders dated 12.05.2020 and 30.04.2020. They have passed the impugned order on 28.05.2020 which is in contravention to Rule 152 of the NCLT Rules 2016. It was pointed out that the impugned order was passed more than six months after being reserved, which violates Rule 150 of the NCLT Rules, 2016 which mandates that the orders have to be passed within 30 days of such order being reserved. Hon ble Supreme Court in the case of Anil Rai Vs. State of Bihar (2001) 7 SCC 318 laid down guidelines regarding the pronouncement of judgments which shall be followed by all concerned. As per the guidelines, after conclusion of the arguments in civil matters the judgment must be pronounced within a period of two months. However, it was submitted that in the present case, the impugned order has been pronounced after six months from the date of conclusion of the arguments. Therefore, on this ground, the impugned order is liable to be set aside. 9. Ld. Counsel for the Appellant further submitted that as per Rule 89 of the NCLT Rules, 2016, the registry is required to publish the cause list for the next day in advance, however, in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htly rejected the plea of the pre-existing dispute and admitted the application. 11. Ld. Counsel for the Respondent No. 1 further submitted that it is true that both the Members of the Adjudicating Authority were under transferred however, due to the COVID-19 pandemic, they could not travel and take charge of another bench. Hence, the matters which were already heard, in those matters orders were pronounced. The matters were getting listed for pronouncement of order, hence, there is no violation of any Rule. The Appellant does not have merits in the Appeal, therefore, he has raised such baseless issues. 12. It is further submitted that the Appellant has no locus to prefer the appeal independently without any authority. Thus, the appeal is liable to be dismissed with cost. 13. After hearing ld. Counsel for the parties, we have minutely examined the record and considered the submissions. 14. Following issues arise for our consideration. (i) Whether there is any pre-existing dispute? (ii) Whether the impugned order is passed in contravention of Rule 152, Rule 150 and Rule 89 of the NCLT Rules 2016? Issue No. (i) 15. Ld. Counsel for the Appellant argued that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there is no reference of this e-mail in the reply to the statutory notice. In the said e-mail it is not mentioned that it is in relation to the Purchase Order dated 27.10.2016. In the subsequent e-mail dated 03.11.2016, there is no reference to the earlier e-mail dated 30.10.2016. In such circumstances, we are of the view that the e-mail dated 30.10.2016 is not related to the transaction in question. 20. Now we have considered the email dated 03.11.2016 which reads as under: - Date 03.11.2016 Kind Attn: Mr. Samirji Sub: - Inferior/poor quality of Indonesian Coal. Dear Sir, We have placed an order for 500 MT Indonesian Coal to you vide our P.O. No. HDPL/2016-17/586 dated 27.10.2016 for 5400 GCV and Moisture condition is 38-40%. But, on receiving the coal we found that GVC less than 4000 and size of coal is 0mm 50% and maximum size is 5mm to 6 mm only and moisture is 48-50%. It seems if we receive such type of coal we are facing the cleaning problem of boiler and due to that nozzle bent and boiler become damaged. This will occur heavy production loses. Hence, please stop delivery of the material/coal and advise us what to do this loss. If any more loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent to the Operational Creditor and these reports are prepared by the Corporate Debtor s testing laboratory. Therefore, these reports cannot be considered to demonstrate that the supplied coal was not as per purchase order. 25. It is an admitted fact that the Corporate Debtor has received the statutory notice on 08.02.2018. Pursuant to the said notice, they sent the reply to notice on 17.02.2018. Thereafter, the Corporate Debtor filed a Civil Suit for damages against the Operational Creditor on 26.03.2018. Section 8 (2) of IBC reads as under: - existence of a dispute, if any, or record of the pendency of the suit or Arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute 26. In the present case, the Civil Suit has been filed after receipt of statutory notice, therefore, such Civil Suit cannot be treated as existence of dispute. 27. Thus, we are of the view that the Corporate Debtor has failed to prove any pre-existing dispute in regard to transaction in question. Issue No. (ii) 28. It is an admitted fact that the NCLT Bench, Ahmedabad consisted of Shri H. P. Chaturvedi Member (Judicial) and Shri Prashanta Kr. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
