Al-Samparda Pharmaceuticals Nigeria ... vs Premedium Pharmaceuticals ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Ins.) No. 1537 of 2022 & I.A No. 4899 of 2022 IN THE MATTER OF: Al-Samparda Pharmaceuticals Nigeria Ltd. ...Appellant

Versus

M/s Premedium Pharmaceuticals Pvt. Ltd. ...Respondent Present: For Appellant: Mr. Om Prakash Parihar & Supriya Pandita, Advocates For Respondent: Mr. Hrishikesh Baruah, Mr. Pranav Jain, Mr. Kumar Kshitij, Advocates ORDER

Per: Justice Rakesh Kumar Jain:

16.01.2023: This appeal is directed against the order dated

03.10.2022, passed by the Adjudicating Authority (National Company Law

Tribunal, New Delhi, Court IV) by which an application filed by the Appellant

(Operational Creditor) under Section 9 of the Insolvency and Bankruptcy

Code, 2016 (in short 'Code') against the Respondent (Corporate Debtor) has

been dismissed on the ground that it is hit by Section 10A of the Code.

2. Counsel for the Appellant has submitted that the dates mentioned in

the demand notice is a typographical error.

3. We have heard Counsel for the Appellant and after perusal of the record,

are of the considered opinion that the arguments raised by the Appellant is

after thought because the dates have been specifically mentioned not at one

place but two places of the demand notice which read thus "fell due on various

dates being 21.12.2020 and 14.01.2021 as per MOU and Addendum to MOU"

4. In this case, the Appellant has sought recovery of USD 100,000 i.e Rs.

76,41,000/- due as per the terms of MOU dated 14.09.2020 and as per addendum dated 14.09.2020 and has also set up a claim of USD

340,725.69/- i.e. Rs. 26,034,849.97/- incurred as total expenses in

managing day to day affairs of running a company.

5. The application filed under Section 9 of the Code is preceded by a

statutory demand notice issued under Section 8 of the Code which contains

the pleadings that the said amount became due between 21.12.2020 and

14.01.2021 and as a consequence thereof, the Tribunal dismissed the

application on the ground that it is hit by Section 10A which provides that

"notwithstanding anything contained in sections 7, 9 and 10, no application

for initiation of corporate insolvency resolution process of a corporate debtor

shall be filed, for any default arising on or after 25th March, 2020 for a period

of six months or such further period, not exceeding one year from such date,

as may be notified in this behalf"

6. In our considered opinion, the present appeal is squarely covered by

Section 10A of the Code in view of the pleadings set up by the Appellant in

the demand notice which is a sine-quo-non for the purpose of initiation of

proceedings in terms of Section 9 of the Code.

7. In view of the aforesaid facts and circumstances of the case, we do not

find any merit in the present appeal and the same is hereby dismissed though

without any order as to costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical) Sheetal/RR