9911796707
TMI Blog2021 (9) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... though sufficiently meeting the requirements of the format) we do not want to ascribe undue weight to such argument which is mere technicality. The Adjudicating Authority has rightly found that there are dues outstanding which attract Section 9 of IBC. The Appellant is trying to confuse by referring to portal of Icegate but when there are documents in favour of the Operational Creditor, it is not found that Appellant is able to show that the goods were not received and that the Corporate Debtor did not have any liability to pay. We do not find any fault with the impugned order admitting the Application under Section 9. Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 338 of 2020 - - - Dated:- 20-9-2021 - [Justice A.I.S. Cheema] The Officiating Chairperson And [V. P. Singh] Member (Technical) For the Appellant : Mr. Abhijeet Sinha and Ms. Pratiksha Sharma, Advocates. For the Respondent : Mr. Vijay M Chauhan and Mr. Sahil Mahajan, Advocates for R-1. Mr. Sumit Kansal, Advocate for R-2. JUDGMENT A. I. S. Cheema, J. The Appellant Director of the Corporate Debtor Pioneer Globex Private Limited has filed this appeal being aggrieved by the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of origin, certificate of weight and declaration 26-31 IC copy of letter dated 14.05.2016 32 ID copies of letter dated 20.07.2012, 23.08.2016 and 27.06.2016 33-35 IE copies of email 36-37 07 Board resolution 39 2. The Corporate Debtor claimed before the Adjudicating Authority by way of reply that the Application filed was without proper authority; that notice dated 11.12.2017 could not be treated as demand notice; that relevant document confirming non-payment has not been filed; and that there were no agreement with regard to rate of interest. 3. The Adjudicating Authority regarding dispute of non-filing of document confirming no payment (Section 9 (3) (e) of IBC) and that interest was not agreed to, has not held to be favouring the Corporate Debtor. The counsel for the parties while making submissions, did not argue on these grounds. However, the Counsel for the Appellant has argued with regard to the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant. That itself shows that the claim made by the respondent that no goods have been delivered to them is misleading, more so when all the documents like sales contract, tax invoice, bill of lading, packing list, certificate of origin, certificate of weight and declaration annexed to the application at page 10-16 bear stamp and signature of the respondent which shows that the respondent had received delivery of such goods. 22. On perusal of the record it is found that the petition is complete in all respect. 6. Thus, the Adjudicating Authority admitted the Application. 7. One grievance of the Appellant is that the Corporate Debtor had filed I.A. No. 678/2019 (Appeal page 136-Annexure A-8) making Nhava Sheva Port Authorities as respondent to claim that the said authority had not given documents regarding delivery of the goods was not duly decided. The Appellant has referred to impugned order Para 25 where it was observed that the I.A. does not merit any consideration. 8. In the course of the Appeal the Appellant was given opportunity and the Appellant has with Dy. No. 25367 and 26409 filed documents and Convenience Compilation - Dy. No. 27238 and referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated by, a Notary Public, or any Court, Judge, Magistrate, 1[Indian] Consul or Vice-Consul, or representative2 *** of the 3[Central Government], was so executed and authenticated. 12. Learned Counsel for the Appellant then relied on judgment in the matter of Jaldhi Overseas Pvt. Ltd. vs. Bhushan Poer Steel Limited , 2017 SCCOnline Cal 4414 to argue that unless the document executed in a Foreign Country is apostilled, the same cannot be accepted in evidence. Perusal of the judgment in the matter of Jaldhi Overseas Pvt. Ltd. (supra) shows that it related to enforcement of a foreign award. Dispute raised was that the execution application had not been notarised in the proper manner as required under the law. In that matter the execution was witnessed by a Notary Public of Singapore. In para 60 of the judgment the Hon ble High Court found that and in that case Court was satisfied that appropriate procedure for notarial attestation on the Power of Attorney had been duly and validly done. It is apparent that matter of Jaldhi Overseas Pvt. Ltd. related to execution of Power of Attorney. In the present matter, we are concerned with the Directors of the Company passing resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh sufficiently meeting the requirements of the format) we do not want to ascribe undue weight to such argument which is mere technicality. 16. Learned Counsel for the Appellant has argued that the Operational Creditor attached various documents regarding loading of the goods for shipment to prove dispatch but however document of delivery to the Corporate Debtor has not been proved. We have gone through the record and the Additional Documents filed by the Appellant. The Learned Counsel for the Operational Creditor referred to the documents filed with the Appeal (which were filed with the Application under Section 9 of IBC), copies of which have also been filed with the Convenience Compilation Dy. No. 27150 by the Respondent. 17. The Counsel for the Respondent submitted that firstly there is Sales Contract dated 01.03.2016 (Appeal page 90) which is document with regard to the agreement between the parties. Then reference is made to the Tax Invoice (Appeal page 91). The Learned Counsel pointed out that this Tax Invoice is not only signed by the Operational Creditor but even the Director of Corporate Debtor signed this document. Reference is also made to the Bill of Lading (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d shall constitute title to the Goods and the holder shall be entitled to receive or to transfer the Goods herein described. 20. Thus, it is argued by the Learned Counsel for the Operational Creditor that when the Corporate Debtor wanted the goods to be sent To order , the Bill of Lading was negotiable and once it is negotiable and there are documents to show acknowledgement of Bill of Lading by the Corporate Debtor, rest is matter within knowledge of the Corporate Debtor as to how the Corporate Debtor has further negotiated the Bill of Lading. We find substance in the argument of Learned Counsel for the Operational Creditor. Thus, we discard the argument by Learned Counsel for the Appellant that the Corporate Debtor did not receive the value of the goods. 21. Learned Counsel for the Respondent pointed out reminders sent by the Operational Creditor to the Corporate Debtor on 20.07.2016. 23.08.2016 and 27.06.2017 (Copies at page 113 to 115 of the Appeal). The document dated 27.06.2017 sent to the Corporate Debtor mentions that despite regular and intense follow up by Deepak Shah and Pratik Shah, outstanding amounts have not been paid. The letter was addressed to Hardik Shah ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
