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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 ..... , an agreement (Annexure A-2 at page 46 to 52 of the Appeal) was executed between the Appellant / Operational Creditor and Respondent / Corporate Debtor whereby the Appellant was appointed on commission basis, as the clearing and forwarding agent for the products was distributed and marketed by the Corporate Debtor. ii) In terms of the aforesaid agreement the Appellant was required to deposit with the Corporate Debtor an amount of Rs. 1,00,00,000/- in two equal instalments of Rs. 50,00,000/- as Refundable Security Deposits carrying simple interest @ 9% per annum payable on quarterly basis by the Corporate Debtor to the Appellant. iii) Further case of the Appellant is that on 13.11.2017 an amount of Rs. 50,00,000/- was deposited by the Appellant vide Cheque No. 107746 in terms of the Agreement as part of the aforesaid refundable security deposit. The balance security deposit of Rs. 50,00,000/- was deposited on 30.01.2018 by the Appellant with the Corporate Debtor vide Cheque No. 143033. iv) The Appellant rendered the services to the Corporate debtor in terms of the said Agreement. As per the Agreement the Corporate Debtor was bound to pay the commission amount as well as the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not supported with Board Resolution and therefore, due to want of proper authorization, supported with Board Resolution, demand notice and subsequent filing of the Application under Section 9 of the IBC is bad in eye of law and not maintainable and second Agreement dated 10th November, 2017 contains an arbitration clause (para 32 at page 51 of the Appeal) therefore filing Petition under Section 9 of the Code is gross violation of the agreement entered into between the parties and bad in the eye of law. 4. It is further submitted that the Ld. Adjudicating Authority has failed to consider that the Board Resolution dated 02 July 2019 by the Appellant Company whereby one Mr. Jatinder Kumar was authorized to initiate proceedings under the Code against the Respondent. 5. It further submitted that neither the Ld. Adjudicating Authority nor the Respondent ever raised any objection at the time of Pleadings with respect to absence of Board Resolution or doubted the authority of the signatory of the Operational Creditor. 6. It is further submitted that the proviso of Section 9 of the IBC provides that the Adjudicating Authority, shall before rejecting an application under sub-clause (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The agreement is in force and continuous till dated 21.08.2019. The stock received by the Appellant and sales made by the Appellant post this date. The Respondent produced the total statement of sales made by the Appellant starting from the date of contract i.e. 10.11.2017 till 21.08.2019 (Annexure-3 of the Reply). The Appellant received stock from Respondent from January, 2019 to August, 2019 and the Appellant sold goods from January, 2019 to August, 2019. The Respondent adjusted amount of commission against stock which is in the possession of the Appellant. The Appellant suppressed material facts and after resignation dated 18.12.2018 the contract was continued. The agreement is in force till 21.08.2021. 9. It is further submitted that the Appellant is concealing aforesaid transactions and received the stock in the godown and sales made by him from 01.04.2019 to 21.08.2018 (Annexure-5 of Reply). The notice of termination of agreement was given by the Appellant by e-mail dated 18.12.2018 which is not in accordance with the agreement as per the clause No. 27 of the agreement. As per the agreement the Appellant has not given notice in writing, not by registered post or by courier a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-existing dispute. The notice of termination of agreement was given by the Appellant by e-mail dated 18.12.2018 which is not in accordance with the agreement and it was not accepted by the Respondent. Based on these submissions, the Appellant has not come with clean hands, therefore, the Appeal of the Appellant is not maintainable in law and the same deserves to be dismissed with costs. FINDINGS 14. After hearing the parties and having gone through the pleadings, we are of the considered view that the following facts are admitted in the instant Appeal. On 10.11.2017, an agreement (Annexure A-2 at page 46 to 52 of the Appeal) was executed between the Appellant / Operational Creditor and Respondent / Corporate Debtor whereby the Appellant was appointed on commission basis, as the clearing and forwarding agent for the products distributed and marketed by the Corporate Debtor. In terms of the aforesaid agreement the Appellant was required to deposit with the Corporate Debtor an amount of Rs. 1,00,00,000/- in two equal instalments of Rs. 50,00,000/- as Refundable Security Deposits carrying simple interest @ 9% per annum payable on quarterly basis by the Corporate Debtor to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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. Instead of invoking Arbitration, the Appellant has filed this Application under Section 9 of the IBC. After going through the record, we find that the Board Resolution passed by the Board meeting of ICI Healthcare Pvt. Ltd on 31.02.2020 (page 142 of the Appeal) authorizes Mr. Naveen Jain to represent the Company and take necessary action before the Hon'ble Court of Ahmedabad. The demand notice under Section 8 of the IBC sent by the Appellant to the Respondent on 21.08.2019 and further Application under Section 9 of the IBC was filed on 01.10.2019 much before the Board Resolution. ORDER 15. Taking all these facts and circumstances of the case, we are of the considered view that 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 dated 18.12.2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Ahmedabad in C.P. No. (IB) 784/9/NCLT/AHM/2019 is hereby affir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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