Acquisory Consulting Llp vs Bbc Infrastructure Pvt. Ltd

(Arising out of Order dated 16th March, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Single Bench, New Delhi in CP.IB No.317/ND/2017)

IN THE MATTER OF:

M/s. Acquisory Consulting LLP ...Appellant

Vs

M/s. BCC Infrastructure Pvt. Ltd. ....Respondent

Present:

For Appellant: Mr. Arun Kathpalia, Senior Advocate with Mr. Rajesh P, Ms. Bani Brar, Mr. Prasanth Jain, Mr. Samaksh Goyal and Mr. Siddharth Nath, Advocates.

For Respondent: Dr. U.K. Chaudhary, Senior Advocate with Mr. Himanshu Vij and Mr. Ashok Kumar Singh, Advocates.

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

'M/s. Acquisory Consulting LLP' claimed to be the 'Operational

Creditor' filed an application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 ('I&B Code' for short) for initiation of the 'Corporate

Insolvency Resolution Process' against 'M/s. BCC Infrastructure Pvt. Ltd.'-

('Corporate Debtor'). The Adjudicating Authority (National Company Law

Tribunal), Single Bench, New Delhi, by impugned order dated 16th March,

Company Appeal (AT) (Insolvency) No. 152 of 2018 2

2018, dismissed the application preferred by the Appellant giving rise to the

present appeal.

2. The Adjudicating Authority while held that the Appellant does not

come within the meaning of 'Operational Creditor', also rejected the claim

on the ground that no demand notice under Section 8(1) of the 'I&B Code'

was served on the 'Corporate Debtor'.

3. Learned Senior Counsel appearing on behalf of the Appellant referred

to an Engagement Letter dated 5th September, 2013 written by the

Appellant to suggest that in terms of discussions with respect to assistance

as was sought for raising debt amounting to Rs. 150 Crores from Non-

Banking Financial Companies or Private Banks in 'M/s. BCC Infrastructure

Pvt. Ltd.' for construction of the project at Ghaziabad and repayment of

debentures to HDFC PMS, the Appellant quoted fees for engagement equal

to 2% of the size of the transaction to be given after disbursement of loan.

The copy of the said letter is annexed as Annexure A-3, but we find that at

number of places there are overwriting and cutting and part of which is

clause 14 (Exclusivity) has been struck of and the letter is not signed by

any person. For the said reason, we have not relied upon the aforesaid so-

called agreement.

4. Learned Senior Counsel appearing on behalf of the Appellant relied

on proof of services rendered on Respondents and enclosed between Pages

112 to 176, but we find that those are e-mail exchanges between the

parties and not a demand notice under Section 8(1) of the 'I&B Code'.

Company Appeal (AT) (Insolvency) No. 152 of 2018 3

5. The case of the Appellant is that Mr. Arun Gupta, CFO of Respondent

signed the Engagement Letter and he was also the signatory to the financial

statements of the 'Corporate Debtor' during his tenure as well as properly

authorized to sign the Engagement Letter. Engagement Letter is

documented in E-mail dated 16th September, 2013, from Appellant to Mr.

S.P Singh. Further, the assignment letter assigning the said Engagement

Letter to the Appellant was signed by Mr. S.P. Singh who is none other than

the Chairman cum M.D of the 'Corporate Debtor'.

6. Annexure A-3 is said to be the Engagement Letter but we have

already given reason for not relying on the same and on mere reading of the

same, it will be evident that it cannot be held to be an Engagement Letter.

Whether the Respondent- 'Corporate Debtor' raised any dispute before filing

of the insolvency application under Section 9 or not is not the question. The

Adjudicating Authority has not accepted the relationship of the 'Corporate

Debtor' and the 'Operational Creditor' between the Respondent and the

Appellant; we also do not find any such relationship.

7. Learned Senior Counsel appearing on behalf of the Appellant though

enclosed invoices dated 6th June, 2016, 21st October, 2016 and 4th April,

2017 and different e-mails and highlighted certain facts by the Appellant

has failed to bring on record any document to suggest that the Appellant

has rendered services to the 'Corporate Debtor' as observed above. Thus

there being a disputed question of fact, the Adjudicating Authority had

rightly refused to entertain application under Section 9 preferred by the

Company Appeal (AT) (Insolvency) No. 152 of 2018 4

Appellant. We find no merit in this appeal. It is accordingly dismissed. No

costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial)

NEW DELHI

30th November, 2018

AR

Company Appeal (AT) (Insolvency) No. 152 of 2018