Alok Jain vs Tijaria Polypies Ltd

[Arising out of Order dated 25.01.2019 passed by National Company Law Tribunal, Jaipur Bench, Jaipur in IB No.710(ND)/2018 TA No.06/2018]

IN THE MATTER OF: Before NCLT Before NCLAT

Mr. Alok Jain Operational Creditor Appellant S/o Lt. Sh. J.P. Jain R/o SE - 138, Shastri Nagar, Ghaziabad, UP - 201002

Versus

Tijaria Polypipes Ltd. Corporate Debtor Respondent A-130(E), Road No.9D Vishwakarma Industrial Area, Jaipur - 302013 Rajasthan Through its Authorized Representative

For Appellant: Ms. Prachi Johri, Advocate

For Respondent: Shri Avneesh Garg, Advocate

JUDGEMENT

(30th April, 2019)

A.I.S. Cheema, J. :

1. The Appellant claiming himself to be Operational Creditor filed

Petition - IB No.710(ND)/2018 TA No.06/2018 under Section 9 of the

Insolvency and Bankruptcy Code, 2016 (IBC - in short) before the

Adjudicating Authority (NCLT), Jaipur Bench, Jaipur. He claimed that 2

there was an operational debt of Rs.19,98,700/- outstanding against the

Respondent - Corporate Debtor which debt was in default. The Appellant

claimed that the Corporate Debtor manufactures Polypipes and he had

entered into the Agreement dated 26.12.2017 to provide services as

sales representative of the Corporate Debtor for sale of PLP Duct Pipe of

40mm x 33mm in the State of Telangana. According to the Appellant,

the Respondent entered into Rate Contract Agreements with the

Government of Telangana and the value of Contract of order procured

was Rs.1,57,87,000/-. He also learned about another order worth

Rs.1,20,00,000/-. The Appellant claimed that in spite of such orders

and the Agreement dated 26.12.2017, he was not paid his dues and

thus, he first sent notice dated 20.03.2018 and then notice under

Section 8 of the IBC and then Application was filed before the

Adjudicating Authority. The Respondent entered appearance before the

Adjudicating Authority and filed Reply disputing that any such Notices

were sent or received. It was also claimed (Reply para - 21) that the

supply order being relied on for claiming the commission related to "PLB

HDPE Duct" and not "PLP Duct Pipe" and that the Appellant was making

false claims. The Respondent raised various other contentions also.

2. The learned Adjudicating Authority heard the parties and rejected

the claim of the Appellant that "PLP Duct Pipe" mentioned in the

Agreement should be construed as "PLB HDPE Duct". The Adjudicating

Company Appeal (AT) (Ins) No.246 of 2019 3

Authority found that there was an existing dispute and for this and other

reasons, dismissed the Petition which had been filed.

3. We have heard Counsel for both sides. The learned Counsel for the

Appellant submitted that the Respondent Company manufactures PLB

HDPE Duct Pipes and not PLP Duct Pipes and so the Agreement (copy

of which is at Page - 78 of the Appeal) actually related to such product

and the Agreement should have been read accordingly. It is stated that

PLP means "Permanently Lubricated Pipe" and the word "PLB" actually

means "Permanently Lubricated". Against this, the learned Counsel for

the Respondent referred to the Reply filed before Adjudicating Authority

and submitted that these are two different types of products and the

Appellant cannot try to claim commission relating to product which is

not mentioned in the Agreement on which the Appellant is trying to rely

on. Respondent is also arguing that Appellant had proposed to

Respondent that he will get Orders for PLP Duct Pipes and Respondent

entered into agreement so that if such Orders are procured, Respondent

will manufacture accordingly and supply.

4. In order to trigger the provisions of the IBC on the basis of Section

9, it is necessary for the Operational Creditor, to show that there is

outstanding operational debt and that there is a default. The learned

Counsel for Appellant to contend that there was an operational debt,

which was in default, referred to the Agreement (Page - 78) which clearly

refers to the product as "PLP Duct Pipe" of 40mm x 33mm. The supply

Company Appeal (AT) (Ins) No.246 of 2019 4

order on which the Counsel for Appellant is relying on is at Page - 82 of

the Paper Book. It shows that the product for which the Government of

Telangana placed supply order with the Respondent, was relating to

"PLB HDPE Duct" and its accessories. Appellant is now claiming that

PLP Duct mentioned in the Agreement should have been written with

complete description, which remained, and claims that PLP Duct is

same product as "PLP HDPE Duct". On hearing Counsel and perusing

Impugned Order, we are unable to accept the submissions of Appellant.

Appellant has failed to show debt due.

5. Apart from above, the supply order (Page - 82) which is being relied

on by the Appellant itself mentioned in the reference, and it shows that

supply order was being given to the Respondent on the basis of RC

Agreement dated 05.06.2017. This is clearly a date which is prior to the

Agreement dated 26th December, 2017, which is being relied on by the

Appellant. The Appellant has failed to show that operational debt existed

and thus, we do not find any reason to interfere with the Impugned

Order.

The Appeal is rejected.

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical) /rs/gc

Company Appeal (AT) (Ins) No.246 of 2019