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TMI Blog2022 (3) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... plication under Section 9 of the IBC was filed on 01.10.2019 much before the Board Resolution. There is no illegality in the impugned order while dismissing the Application filed by the Appellant under Section 9 of the IBC, therefore, the impugned order passed by the Ld. Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Ahmedabad is hereby affirmed - Appeal dismissed. - Company Appeal (AT) (Insolvency) No. 105 of 2021 - - - Dated:- 9-3-2022 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Shubham Paliwal and Mehul Dhingra, Advocates For the Respondents : Ms. Manisha C Shah and CA Anjali Choksi, Advocates JUDGMENT Justice Anant Bijay Singh ; The Appellant has preferred this Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) being aggrieved and dissatisfied by the order dated 18.12.2020 in C.P. No. (IB) 784/9/NCLT/AHM/ 2019 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Ahmedabad whereby and where under the Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rminate the Agreement dated 10.11.2017 and accordingly the Appellant sent an email on 18.12.2018 (Annexure A-4 at page 76 of the Appeal) to the Corporate Debtor, inter alia, again demanding the outstanding payment/amounts from the Corporate Debtor and also intimating the termination of the Agreement. viii) Further case is that the Appellant / Operational Creditor sent a Demand Notice on 21.08.2019 (Annexure A-6 at page 78 to 80 of the Appeal) to the Corporate Debtor under Section 8 of the IBC. Thereafter, on 31.08.2019, the Appellant received an undated reply issued by the Corporate debtor to the aforementioned Demand Notice. In the said reply no existing disputes between the parties were not pointed out (Annexure A-7 at page 81 to 83 of the Appeal). Thereafter, the Appellant preferred Application under Section 9 of the IBC before the Ld. Adjudicating Authority and after hearing the parties, the said Application was dismissed. Hence this Appeal. Submissions on behalf of the Appellant 3. The Learned Counsel for the Appellant during the course of argument and in his memo of Appeal along with Written Submissions submitted that the Ld. Adjudicating Authority has dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of dispute shall at any time during the term or thereafter arise between the parties with respect to the validity, interpretation, implementation or alleged material breach of any provision of this agreement or the rights or obligations or the parties hereunder or regarding any question including the question as to whether the termination of agreement by either party has been legitimate, then the parties shall attempt to settle such dispute amicably between them, in the event that such dispute has not been amicably settled within 90 days, then such a question or dispute shall be referred to any finally resolved by arbitration with arbitration rules of arbitration and conciliation act 1996. For time being in force which rules are deemed to be incorporated by reference in the clause. The precise location of the arbitration shall be Gurugram. All proceedings of such arbitration, including without limitation, any agreement or awards, shall be in the English language. 8. It is further submitted that as there were serious disputes regarding notice of termination of agreement was given by the Appellant by e-mail dated 18.12.2018 (Annexure-2 of the Reply) which is not in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent. The statement of commission and interest received by the Appellant from the date of the contract i.e. 10.01.2017 till today (Annexure-6 of the Reply). 10. It is further submitted that the stock lying at Appellant's godown worth ₹ 90,55,105/- (Annexure-7 of the Reply) and the Appellant has not handed over the stock to the Respondent till today. 11. It is further submitted that all the payment towards commission on sales and interest on security deposit are paid to the Appellant. The Respondent produced a summary of stock transferred to the Appellant, onwards sales by Appellant, calculation of commission and interest, payment of commission and interest and reconciliation of all accounts (Annexure-8 of the Reply). 12. It is further submitted that the deposit shall carry simple interest at the rate of 9% per annum payable on quarterly basis. The deposit amount shall be paid by Neelkanth (Appellant) in two equal parts of ₹ 50,00,000/- in November, 2017 and ₹ 50,00,000/- in January, 2018 (Annexure-6 of the Reply). 13. It is further submitted that the notice is a prerequisite under Section 8 of the IBC, before filing the petition under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F agent of ICI Healthcare Pvt. Ltd. as there is kind of working environment makes it difficult for me as well as my team and further requested to accept my resignation with effect from today that is 18th December 2018 and clear the dues of approx. ₹ 20 Lacs in next 5 days. The Appellant / Operational Creditor sent a Demand Notice on 21.08.2019 (Annexure A-6 at page 78 to 80 of the Appeal) to the Corporate Debtor under Section 8 of the IBC claiming outstanding due of ₹ 1,21,55,928/-. The Respondent replied on 02nd September, 2019 in which it has been categorically stated that the Demand Notice does not depict the correct financial position of the transactions between the Appellant and the Respondent and further it has been stated that the payment of ₹ 33,65,465/- has already been made against the invoices raised by the Appellant and further Medicine stock of ₹ 88,67,000/- is lying in the warehouse of the Appellant Company. The Adjudicating Authority dismissed the Application filed by the Appellant herein under Section 9 of the IBC merely on two grounds; firstly, that without authorization the Appellant had sent the demand notice under Section 8 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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