Bishnu Kumar Agarwal vs Kushal Polysacks Private Limited

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Ins) No. 1449 of 2025 IN THE MATTER OF: Bishnu Kumar Agarwal, ...Appellants Suspended Director of Samarth Fablon Pvt. Ltd. Versus Kushal Polysacks Pvt. Ltd. & Anr. ...Respondents

Present: For Appellant : Mr. Abhijeet Sinha, Sr. Advocate with Mr. Anshuman Sinha, Mr. Vijay Kumar Pandey, Mr. Vinay Prakash, Mr. Prakhar Prakash, Mr. Udyan Sinha, Advocates a/w Mr. Swarup Ghosh- IRP. For Respondents : Mr. Gaurav Mitra, Ms. Apoorva Chowdhury, Mr. Ankit Agarwala and Ms. Aishwarya Modi, Advocates for R1.

ORDER

(Hybrid Mode)

23.09.2025: Heard counsel for the Appellant and Shri Gaurav Mitra, Ld.

Counsel appearing for the respondent.

2. This appeal has been filed against the order dated 10.09.2025 passed by

the National Company Law Tribunal, Division Bench-I, Kolkata admitting

Section 9 application filed by the respondent herein, the Operational Creditor.

The Operational Creditor had initiated proceedings under Section 9 claiming a

default of ₹18,26,33,734/-. The demand notice was issued on 05.07.2023,

whereas a civil suit was filed in May, 2023 between the parties. The case of the

Operational Creditor was that Operational Creditor was Del Credere Agent (DCA)

of Indian Oil Corporation Ltd. and supplies were made to the corporate debtor

by Indian Oil Corporation with regard to which the payments were made by the

agent and the amount was due on the corporate debtor hence the proceedings

were initiated under Section 9 by issuing demand notice.

3. The Corporate Debtor filed its reply and submitted that there is pre-

existing dispute between the parties, claiming that the amount for which the

Operational Creditor has filed the proceedings has already been paid. It is

submitted that both Corporate Debtor and Operational Creditor were family

companies of which appellant and Mr. Naresh Kumar Agarwal were brothers

and Directors. There were two family settlements in 2011 and 2018 between the

parties under which all issues were sorted. It is submitted that the Civil Suit

being Civil Suit No. 722 of 2023 has been filed in the Court of Civil Judge,

Senior Division at Alipore where both Corporate Debtor and Operational

Creditor were parties and the issues of payment to the Operational Creditor

were also in issue. He submits that there was pre-existing dispute between the

parties and Section 9 application ought not to have been admitted.

4. Ld. Counsel for the appellant submits that there were reconciliation issues

also between the parties.

5. We have heard Ld. Counsel for the parties and perused the records.

6. Ld. Counsel for the appellant has referred to the Title Suit No. 722 of

2023 filed in May 2023 in which Naresh Kumar Agarwal is the plaintiff/

promoter of the OC and appellant herein is defendant no.1 and the Operational

Creditor itself was defendant no.11. Counsel for the appellant has referred to

paragraph-34 of the plaint which is as follows:-

"At that juncture, plaintiff no:1 duly agreed to such proposal and provided a separate bank account of the defendant no:11, not touching the business accounts of the parties. Only after repeated exhortations and fervent requests, the defendant no. 1, in between, 25.08.2017 to 28.11.2018, deposited an aggregate sum of 2 of 3 Company Appeal (AT) (Ins) No. 1449 of 2025 Rs.15,54,00,000 (Rupees Fifteen Crores Fifty Four Lakhs) only, Rs. 12,00,00,000/- (Rupees Twelve Crores) only was paid on account of partial discharge of the obligation and Rs. 3,54,00,000 (Rupees Three Crore Fifty Four Lakhs) only on account of transfer of property."

The Corporate Debtor in the proceedings under Section 9 has also pleaded

payment of amount of Rs. 12 Crore towards the partial discharge of obligation in

reply to Section 9. The fact that there has been family settlement between

parties and Civil Suit is still pending covering various disputes which also has

ramification on the debt which is claimed in Section 9 application, we are of the

view that present was a case where due to pre-existing dispute the Adjudicating

Authority could not have admitted Section 9 application.

7. In view of the above, we are of the view that order of the Adjudicating

Authority admitting Section 9 application cannot be sustained. The appeal is

allowed, order dated 10.09.2025 is set aside.

8. Counsel for the appellant submits that the IRP having been appointed all

expenses incurred by the IRP shall be paid by the appellant on details being

given by the IRP. These expenses shall be paid by the appellant in addition to

the amount of Rs. 2 Lakhs as directed by the Adjudicating Authority.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) harleen/NN

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