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Amitabha Bajpayee & Anr vs Seco Tools (India) Pvt. Ltd. & Ors

National Company Law Appellate Tribunal31 August 2018

Ratio decidendi

The rule this decision rests on

The Appellate Tribunal condoned a 15-day delay in filing the appeal, finding sufficient grounds for it. On the merits, an appeal against admission of an operational creditor's Section 9 application cannot succeed where the alleged pre-existing dispute is not shown to relate to the debt claimed: a letter concerning low performance that predates the invoiced supplies does not establish a dispute over the invoices on record for the later period (17 December 2014 to 31 January 2015), so the Adjudicating Authority's finding that no existence of dispute was shown is upheld. A letter of intent that does not concern the quality of the goods, or that concerns the supply of materials to a different party, does not by itself raise a dispute over the operational debt, and a letter addressed to materials supplied in an earlier financial year (2011-12) is likewise not relevant to the invoices in question.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency) No. 506 of 2018IN THE MATTER OF:

Amitabha Bajpayee & Anr. ...Appellants

Vs

Seco Tools (India) Pvt. Ltd. & Ors. ....Respondents

Present:

For Appellants: Mr. Arjun Asthana, Ms. Sreenita Ghosh and Ms. Arka Bannerjee, Advocates. For Respondents:

ORDER

31.08.2018: Having heard learned counsel for the appellant and being satisfied of the grounds shown, we condone delay of 15 days in preferring the appeal.

2. The Appellant, Director of the Corporate Debtor has preferred this appeal against order dated 9th July, 2018 whereby the application preferred by Respondent (Operational Creditor) under Section 9 of the Insolvency and Bankruptcy Code, 2016 ('I&B Code' for short) has been admitted by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata.

3. Learned counsel appearing on behalf of the Appellant submits that there was an existence of dispute. Reliance was placed on a letter dated 3rd February, 2013 sent by the Corporate Debtor to the Operational Creditor relating to low performance. However, the Adjudicating Authority has not accepted this as the dispute is about the supply of goods of subsequent period, between 17th December, 2014 and 31st January, 2015, which were the invoices on record.

-2- 4. Learned counsel for the Appellant also relied on letter of intent on behalf of the Corporate Debtor in the year 2015, but the same does not related to quality of goods and relates to supply of material directly to one or other party. He also relied on letter dated 22nd November, 2014 but from the said letter we find that it is related to materials supplied during the year 2011-12.

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

[Justice S. J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial) am/uk

Company Appeal (AT) (Insolvency) No. 506 of 2018

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