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TMI Blog2022 (12) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... n the parties or that was not placed before the Adjudicating Authority , (National Company Law Tribunal, Hyderabad Bench, Hyderabad), to support the Claim of the Corporate Debtor . Under the Insolvency Bankruptcy Code, 2016, the aspect of existence of Default , takes a prime seat , and the reason supposed to be projected by the concerned Party viz., inability to pay , is of no avail. Appeal dismssed. - Company Appeal (AT)(CH)(Ins) No.427/2022 & IA Nos.1058 & 1059/2022 - - - Dated:- 13-12-2022 - [ Justice M. Venugopal ] Member ( Judicial ) And [ Naresh Salecha ] Member ( Technical ) For the Appellant : Mr. V Raghunath , Advocate For the Respondents : No representation ORDER ( Virtual Mode ) Heard Mr. V Raghunath, the Learned Counsel for the Appellant , at the Admission stage , itself. 2. The Appellant / Suspended Board of Director of the Corporate Debtor has focused the instant Comp. App. (AT)(CH)(Ins) No.427/2022, as an Aggrieved Person , on being dissatisfied with the impugned order dated 30.06.2022 in CP(IB) No.320/9/HDB/2021, passed by the Adjudicating Authority , (National Company Law Tribunal, Hyderabad Bench, Hydera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Negotiable Instruments Act, 1981, in the Court of the V Judicial Magistrate of First Class, Mysuru, it is settled that proceedings under Section 138 of the Negotiable Instruments Act, 1881, do not amount to a pre-existing dispute, and are, therefore, not an impediment to proceedings under Section 9 of the Code, 2016. We derive support from the ruling of the Hon ble NCLAT in Sudhi Sachdev v. Appl Industries (Company Appeal (AT) (Insolvency) No.623/2018), in which it was held that pendency of a case under Section 138 of the Negotiable Instruments Act, 1881, actually amounts to admission of debt and not an existence of dispute. and admitted and declared Moratorium etc. 4. Assailing the Validity , / Propriety , / Legality of the impugned order in in CP(IB) No.320/9/HDB/2021, passed by the Adjudicating Authority , (National Company Law Tribunal, Hyderabad Bench, Hyderabad) dated 30.06.2022, the Learned Counsel for the Appellant submits that the Adjudicating Authority , (National Company Law Tribunal, Hyderabad Bench, Hyderabad), had committed an error in admitting the Application , filed by the 1st Respondent / Petitioner / Operational Creditor , wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Balance and E-mailed the Ledger to the 1st Respondent / Petitioner / Operational Creditor , clarifying the GST Credit aspect. 10. The grievance of the 1st Respondent / Petitioner / Operational Creditor , before the Adjudicating Authority , (National Company Law Tribunal, Hyderabad Bench, Hyderabad) is that the Corporate Debtor is liable to pay to the seller a total sum of Rs.2,90,30,715/- and in this regard the Corporate Debtor , had no intention to clear the Dues and hence, the 1st Respondent / Petitioner / Operational Creditor perforced to issue a Statutory Demand Notice , in directing the Corporate Debtor to clear the outstanding sum of Rs.2,90,30,715/-, being the Default sum , within Ten Days , of the receipt of the Demand Notice sent to the Registered E-Mail Address of the Company , as well as to the E-mail address of its Director , as available on the Ministry of Corporate Affairs website . 11. Per contra, the Corporate Debtor , before the Adjudicating Authority , (National Company Law Tribunal, Hyderabad Bench, Hyderabad) in its Reply , had averred that the Operational Creditor s claim is mainly based on Nine In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such, the Section 9 Application filed by the 1st Respondent / Petitioner / Operational Creditor is not maintainable, per se, in the eye of Law . 17. It may not be out of place, for this Tribunal , to make a pertinent mention that in CP(IB) No.320/9/HDB/2021, the 1st Respondent / Petitioner / Operational Creditor had averred that the Operational Creditor had levied interest at the rate of 9% per annum, after giving Credit period of 30 Days , as agreed to, between the Parties and in the E-mail updated the Ledger , to the Corporate Debtor and, in fact, in spite of several requests made by the Operational Creditor to the Corporate Debtor , the Corporate Debtor had failed to effect the payment , but came out with a false assurance and in reality , the payment was not effected. 18. This Tribunal , has Heard the Learned Counsel for the Appellant / Suspended Board of Director of the Corporate Debtor and noted his contentions. 19. In so far as the Ledger Account of the Corporate Debtor in the Books of Account of the 1st Respondent / Petitioner / Operational Creditor , for the period from 01.04.2019 to 31.03.2020 is concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that the Default had not taken place and that Debt , including a Disputed Sum , is not Due . A Debt may not be Due , if it is not payable in Law or Fact 25. A mere pendency of a Civil Suit or a Criminal Case , under Section 138 of the Negotiable Instrument Act , will not preclude an Applicant, to seek an appropriate remedy , under the Insolvency Bankruptcy Code, 2016 , if he so desires / advised. 26. It cannot be forgotten that the Proceedings in the Insolvency Bankruptcy Code, 2016 are summary in Nature , and it is not an adversarial in Character . An Adjudicating Authority , ( Tribunal ) is not a Civil Court , to decide about the Contract entered into between the parties concerned. 27. Be that as it may, this Tribunal relevantly points out that the Defence to be taken by the Corporate Debtor in a given Case, cannot be namesake one / moonshine one or an illusory one . Further, on a careful consideration of the contentions advanced on behalf of the Appellant / Suspended Board of Director of the Corporate Debtor , and also this Tribunal , on going through the impugned order dated 30.06.2022 in CP(IB) No.320/9/HDB/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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