Shreesha Merla JUDGMENT
Shreesha Merla, Member (T)
1. Challenge in this Appeal is to the Order dated 26.02.2020, passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi), by which Order, the Adjudicating Authority has admitted the Section 9 Application filed by M/s. Worldwide Metals Pvt. Ltd., the Operational Creditor. Aggrieved by the said Order, the shareholder of the Corporate Debtor M/s. J.P. Engineers Pvt. Ltd., preferred this Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016.
2. Succinctly put, the facts in brief are that the Corporate Debtor was a regular buyer of Aluminium Ingots and Wire Rods and had a running account with the Operational Creditor. Appellant claims that the Principle Operational Debt claimed by the Operational Creditor pertains to purchase of Aluminium Ingots and Wire Rods for the period 06.12.2017 to 16.04.2018, for an aggregate amount of 16,18,18,265/-. While admitting the Application under Section 9, the Adjudicating Authority observed as follows:
'22. After hearing submissions of both the Parties and perusing the documents placed on record, this Bench has observed that the Corporate Debtor has not made any specific averments in its Notice of Dispute dated 05.11.2018 as regards to payment of the debt owed to the Operational Creditor to the other concerns namely, M/s. Olympus Metal Private Limited, M/s. Simla Holdings and M/s Oyster Steels and Iron Pvt. Ltd. Further, on comparison of the Ledger of Operational Creditor and Corporate Debtor with the Bank Statements, it is apparent on the face of the record that the Corporate Debtor has made payments of Rs. 1,95,34,823 on 21.10.2017 and Rs. 1,95,79,294 on 10.11.2017 to the Operational Creditor by RTGS Bank transfer.
23. Further, the Corporate Debtor failed to produce any tri-parte agreement amongst the Operational Creditor, Corporate Debtor and its sister concerns, authorising the Corporate Debtor to make payments to other concerns. Moreover, the Debtors are Assets of the Company, which cannot be extinguished or transferred to another concern in the absence of any specific agreement or specific Board resolution to that effect in favour of the Corporate Debtor.
24. In view of the above, this Bench is of the opinion that the dispute raised by the Corporate Debtor is illusionary and moonshine, which is upstretched with an intention to erase its liability and defeat the claim made by the Operational Creditor.'
3. Learned Counsel appearing for the Appellant contended that the Adjudicating Authority had ignored all documentary evidence with respect to 'preexisting dispute' as the Operational Creditor failed to disclose that even before the issuance of demand notice dated 27.10.2018, to which the Corporate Debtor had given a reply on 05.11.2018, the Operational Creditor had earlier issued a notice dated 17.08.2018, claiming the same amount of Rs. 16,18,18,265/-; that the notice was replied to by the Corporate Debtor on 28.08.2018, wherein it was specifically stated that as per mutual understanding, necessary journal entries in the books of accounts being maintained by the Corporate Debtor and in terms of the said journal entries, adjustments of payments were made and therefore no amounts were outstanding in respect of the said invoices. Learned Counsel further submitted that the Operational Creditor had acknowledged the reconciled accounts for the period 04.11.2016 to 31.03.2017 and also for the period 01.04.2017 to 31.03.2018; that, the confirmation of accounts for the period 01.04.2018 to 31.03.2019, duly signed by the Directors of the Operational Creditor and its sisters concern shows that no amount was due and payable. Learned Counsel drew our attention to the confirmatory letter exchanged between the Corporate Debtor and the Operational Creditor and their sister concerns and vehemently con........