Ambit Concrete Private Limited vs Ralhan Construction Private Limited

Present: For Appellant: Mr. Vibhav Tyagi, Advocate For Respondent: Mr. Akhil Shankwar, Mr. Satish Rai, Advocates

ORDER

(Through Virtual Mode)

16.12.2021: Heard Learned Counsel for the Appellant.

This Appeal has been filed against the order dated 18.03.2021 passed by

the 'Adjudicating Authority', an application filed u/s 9 by the Appellant has been

rejected by the impugned order.

2. The Appellant has supplied certain readymade cement for which 8 invoices

were raised and certain amount was paid by 'M/s. Kindle Developers Pvt. Ltd.'

and there being still debts due, an application u/s 9 was filed for an amount of

Rs. 49, 57,362/-, the Learned Adjudicating Authority rejected the application,

aggrieved by the said order, this appeal has been filed.

3. From the facts, which have come on the record, it is clear that although

'Purchase Order' was issued by the 'Corporate Debtor' but the note of the

'Purchase Order' clearly contemplated that billing shall be on behalf of the

'Corporate Debtor' but the payment shall be the owner's responsibility i.e. M/s

Kindle Developers Pvt. Ltd. It is not disputed that part payments were made by

M/s Kindle Developers Pvt. Ltd. to the Appellant.

Company Appeal (AT) (Ins) No. 560 of 2021 1

4. The Learned Counsel for the Appellant submits that materials have been

supplied on the 'Purchase Order' of the 'Corporate Debtor' and the payments by

M/s Kindle Developers Pvt. Ltd. were on behalf of the 'Corporate Debtor'. Hence,

the liability of the 'Corporate Debtor' cannot be denied. The note which contains

the terms and conditions is part of the purchase order dated 10.02.2018 is as

follows:-

"Note : You may make a tripartite

agreement, as billing shall be on our

companies name but all dues and payments

shall be owner's responsibility i.e. M/s Kindle

Developers Pvt. Ltd. they will be solemnly

liable for making direct payments to your

good self on our behalf. Our company at any

stage of time or however and whatsoever the

conditions may prevail. 100% payments shall

be paid/made by our principal employer. As

stated above you may have tripartite

agreement signed by M/s Kindly Developers

Pvt. Ltd. too.

1. As decided during negotiation regular

supply are to be made.

2. Cube test and cube collection shall be your

responsibility.

Company Appeal (AT) (Ins) No. 560 of 2021 2

3. In case of cube test failure any further test

to prove the quality of material shall be

conducted by you or on your cost shall be your

entire responsibility for collaboration of plant

and weight in transit mixer and shall be

reconciliation after pouring with respect to

pouring with respect to poured area...."

5. It is also not disputed that 'Tripartite Agreement' was never entered

between all the three parties and the agreement was between the 'Corporate

Debtor' as well as the Appellant and the 'Corporate Debtor' having clearly

mentioned in the note that all payments shall be the owner's responsibility i.e.

M/s Kindle Developers Pvt. Ltd. and it being not disputed that payments have

been made by M/s. Kindle Developers Pvt. Ltd., the application under Section 9

was rightly rejected.

In view of the aforesaid, the 'Adjudicating Authority' did not commit any

error in rejecting the application u/s 9 of the IB Code . We see no merit in the

appeal, the appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Justice Jarat Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical) ss/nn Company Appeal (AT) (Ins) No. 560 of 2021 3