Ankit Agrawal vs Nico Extrusions Ltd. & Anr

Ankit Agrawal ...Appellant

Vs.

Nico Extrusions Ltd. & Anr. ...Respondents

Present: For Appellant: - Ms. Purti Marwah Gupta and Ms. Henna George, Advocates.

For Respondents: - Mr. Rahul Totala, Advocate for R1. Ms. Divya Swami, Advocate for IRP. Mr. Devang P. Sampat, IRP.

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The Appellant, Shareholder of 'Nicomet Industries Limited'-

('Corporate Debtor') has challenged the impugned order 14th December,

2018 passed by the Adjudicating Authority (National Company Law

Tribunal), Mumbai Bench, Mumbai, admitting the application under

Section 9 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code' for

short) filed by Respondent- 'Nico Extrusions Limited'- ('Operational

Creditor').

2

2. Learned counsel appearing on behalf of the Appellant submitted

that the demand notice shown by the Respondent in Form-5 (application

under Section 9) is different than the Demand Notice issued under

Section 8(1) of the 'I&B Code'.

3. Further, according to counsel for the Appellant, there is pre-

existence of dispute. Reliance has been placed on their pleading as was

made before the Adjudicating Authority.

4. The case of the Appellant is that the 'Corporate Debtor' and the

'Operational Creditor' have had business relations over a long period of

time. The 'Corporate Debtor' purchased certain materials from a group

concern of the 'Operational Creditor' called 'Metec Asia Limited'. The

goods were further supplied to one 'Jaico Enterprises LLP'. The quality of

the goods being of poor standard, the said 'Jainco Enterprises LLP' raised

objection in the 'debit note' for Rs.19,97,563/- (Rupees Nineteen Lakhs

Ninety-Seven Thousand Five Hundred and Sixty-three Only). The

'Corporate Debtor' in turn telephonically informed the 'Operational

Creditor' of the poor quality of the goods.

5. Though the aforesaid submission has been made but in support of

such statement no document has been enclosed to suggest that the goods

supplied by the Appellant were of poor quality or standard or that the

'Corporate Debtor' in turn telephonically had informed the 'Operational

Creditor' of the poor quality of the goods.

Company Appeal (AT) (Insolvency) No. 803 of 2018 3

6. Learned counsel for the Appellant relied on a 'debit note' dated 31st

October, 2016 enclosed with the rejoinder affidavit. From the said 'debit

note', it is clear that it was forward to one 'Metec Asia Limited' and not to

the 'Operational Creditor' with regard to an Invoice dated 2nd May, 2015.

7. Learned counsel for the Respondents brought to our notice Form-

5, the particulars of 'operational debt' and 'records of default' as has been

enclosed wherein reference of the Invoice No. FPS/001/2015-16 dated

22nd April, 2015 has been made which is different from invoice dated 2nd

May, 2015 relating to which letter dated 31st October, 2016 was issued

to one 'Metec Asia Limited'. Thus, we find that there is no dispute raised

by the 'Corporate Debtor' with regard to Invoice No. FPS/001/2015-16

dated 22nd April, 2015, relating to which claim amount of

Rs.20,58,704.00/- was raised.

8. The Appellant has wrongly taken plea that there is difference

between the amount as shown in the Demand Notice under Section 8(1)

and the application under Section 9 (Form-5). From the Demand Notice,

we find that unpaid amount has been shown as Rs.20,58,704.00/-. Part-

IV of Form 5 also shows that same amount i.e. Rs.20,58,704.00/- as

principal amount and Rs.11,11,700/- towards interest @ 18% per annum

i.e. total Rs. 31,70,404/- (Rupees Thirty One Lakh Seventy Thousand

Four Hundred and Four Only).

Company Appeal (AT) (Insolvency) No. 803 of 2018 4

9. As we find that there was no existence of dispute and there being

a debt and default, the Adjudicating Authority rightly admitted the

application under Section 9 of the 'I&B Code'. We find no merit in this

appeal. The appeal is accordingly dismissed. No costs.

(Justice S.J. Mukhopadhaya) Chairperson

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

(Kanthi Narahari) Member(Technical)

NEW DELHI 23rd April, 2019

AR

Company Appeal (AT) (Insolvency) No. 803 of 2018