Bgm Telecommunications Private ... vs Drive India Enterprise Solutions ...

Drive India Enterprise Solutions Ltd. ...Appellant(s)

Versus

BGM Telecommunications Pvt. Ltd. ...Respondent(s) Present: For Appellant : Mr. Jitender Chaudhary, Ms. Shilpa Chohan, Ms. Pankhuri Nehra, Advocates. For Respondents : Ms. Ruchi Kohli, Sr. Advocate, Ms. Sonakshi Dhiman, Ms. Aakriti Mathur, Ms. Srishti Mishra, Advocates.

With Comp. App. (AT) (Ins) No. 112 of 2024 & I.A. No. 358 of 2024

IN THE MATTER OF:

BGM Telecommunications Pvt. Ltd. ...Appellant(s)

Versus

Drive India Enterprise Solutions Ltd. ...Respondent(s) Present: For Appellant : Ms. Ruchi Kohli, Sr. Advocate, Ms. Sonakshi Dhiman, Ms. Aakriti Mathur, Ms. Srishti Mishra, Advocates. For Respondents : Mr. Jitender Chaudhary, Ms. Shilpa Chohan, Ms. Pankhuri Nehra, Advocates. ORDER

(Hybrid Mode) 29.05.2025: This order shall dispose of two appeals bearing CA (AT)

(Ins) No. 53 of 2024 titled as "Drive India Enterprise Solutions Ltd. vs. BGM

Telecommunications Pvt. Ltd." (hereinafter referred to as the first appeal)

and CA (AT) (Ins) No. 112 of 2024 titled as "BGM Telecommunications Pvt.

Ltd. vs. Drive India Enterprise Solutions Ltd." (hereinafter referred to as the

second appeal).

2. The first appeal is filed by the Operational Creditor, being aggrieved

against the impugned order dated 18.10.2023 by which the application filed

under Section 9 of the IBC, 2016 has been dismissed only on the ground

that earlier two applications filed by the same operational creditor against

different Corporate Debtors were dismissed by two different Benches of the

same Tribunal.

3. The second appeal is filed by the Corporate Debtor against the same

impugned order dated 18.10.2023 by which IA No. 5725 of 2021 filed by the

Corporate Debtor seeking an order of initiation of punitive proceedings

against the Operational Creditor has been dismissed only on the ground

that the main petition bearing CP (IB) 998 (ND) 2020) filed by the

Operational Creditor (appellant in the first appeal) has been dismissed.

4. As a matter of fact, the appellant in both the appeals have

challenged the impugned order, inter alia on the ground that the impugned

order is non-speaking.

5. Shorn of unnecessary details, in the first appeal, the appellant has

filed the application under Section 9 for the resolution of an amount of Rs.

35, 57, 89, 682/- which includes the Principal amount of Rs.

23,19,42,081/- and interest of Rs. 13,69,05,456/- which is calculated @

18% p.a., alleged to have been unpaid from the period between August 2017

and August 2020.

6. Case of the operational creditor for resolution of the aforesaid

amount is that the parties had entered into a High Sea Sale Agreement (HSS

Agreement) as per which the Operational Creditor had delivered

telecommunication devices of Semi Knocked Down (SKD) state and batteries

to the Corporate Debtor. According to the appellant, under the HSS

Agreement, SKDs were sold to the CD or its authorized entities at high sea

under the said agreement.

7. The grievance of the appellant in the first appeal is that the

Tribunal, without going into the merits of the case of the appellant, has

dismissed the same only on the ground that earlier also the same appellant

had filed an application under Section 9 against M/s Essline Engineers and

Consultants Pvt. Ltd. bearing IB-932(ND)2020 which was dismissed by the

Tribunal (NCLT, New Delhi Bench-II) vide order dated 15.11.2021 and

another application filed by the appellant under Section 9 against M/s BTM

Exports Ltd. bearing IB-933/(ND)/2020 was dismissed by the same

Tribunal (Court No. VI) on 14.09.2023. In this regard, the following findings

have been recorded by the Tribunal "It has come to our notice that in a

similar case arising out of a similar High Sea Sale Agreements, Bench -II as well as Bench -VI of this Adjudicating Authority have dismissed Section 9

Applications as has been observed in Para 1(iii) and Para 1(iv) (Supra). We,

therefore, are of the considered view that the present application filed under

Section 9 is covered by the said orders passed by Bench- II and Bench -VI

and therefore dismissed".

8. The application filed by the appellant in the second appeal bearing

IA No. 5725/2021 was under Section 65 read with Section 76 of the Code

read with Rule 11 of the NCLT Rules, 2016 for punishing the OC (the

appellant herein in the first appeal) for fraudulent and malicious initiation of

proceedings under Section 9 of the Code and deliberate non-disclosure of

Pre-existing dispute between the Operational Creditor and the Corporate

Debtor.

9. The contention of the Ld. Counsel for the appellant in this case is

that the said application has been dismissed without passing any specific

order. The said application has been dismissed by the Tribunal only on the

ground that since the application filed under Section 9 by the appellant (first

appeal) bearing IB- 998(ND)/2020 has been dismissed therefore, the same

was disposed of.

10. We have heard Counsel for the parties and perused the available

record with their able assistance and found that the approach of Tribunal in

dismissing the application bearing IB- 998(ND)/2020 as well as the

application IA-5725 of 2021 is not in accordance with law.

11. The Tribunal has not deliberated upon the facts given in IB-

998(ND)/2020 and the evidence and has simply relied upon earlier decisions dated 15.11.2021 and 14.09.2023 which are against different CD's which

has no nexus with the facts of the present case because in the case decided

on 15.11.2021, the Tribunal has noticed that there was communications

between the parties dated 23.04.2018, 04.10.2018 and 24.10.2018, relied

upon by the Corporate Debtor, which were prior to the issuance of demand

notice dated 11.12.2019 in which the Corporate Debtor had raised a dispute

about quantum of debt due and payable by the Corporate Debtor, therefore,

there was an issue of pre-existing dispute.

12. In the case decided on 14.09.2023, the court has noticed the

contention of the corporate debtor that there are communications of fraud

and forgery made by the Corporate Debtor but the Tribunal has held that it

is not expected to ascertain the veracity of documents produced and

dismissed the application.

13. In our considered opinion, for the purposes of holding that there is a

similarity in the case setup by the appellant in the first appeal with the two

cases decided on 15.11.2021 and 14.09.2023, it was incumbent upon the

Tribunal to have referred to the facts of all the three cases in detail.

14. Secondly, the application filed under Section 9 has to be decided on

its own facts because the court has to find out as to whether the defence

taken by the corporate debtor is sufficient for the purpose of dismissal of the

application or the same is only moonshine defence.

15. In view of the aforesaid peculiar facts and circumstances, the

impugned order in both the appeals is set aside and the matter is remanded

back to the Tribunal with a direction to decide the lis between the parties afresh by passing a speaking order. The parties shall appear before the

Tribunal on 21.07.2025.

16. It is made clear to the Counsel for the parties as well as to the

Tribunal that while setting aside the impugned order and remanding the

matter to the Tribunal we have not entered upon the merits of the case and

all the issues are kept open. IA's if any, pending are hereby closed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Naresh Salecha] Member (Technical)

[Indevar Pandey] Member (Technical) sr/rr