Cardiac Care And Allied Healthprivate ... vs Ace Cardiopathy Solutions ...

IN THE MATTER OF: Dr. Ghanshyam Bhambhani Suspended Managing Director of Cardiac Care and Allied Health Pvt. Ltd. ...Appellant

Versus

Ace Cardiopathy Solutions Pvt. Ltd. & Anr. ...Respondents

Present: For Appellant : Mr. Anurag Kalavatiya, Prayga Khubani, Parul Singhal, Adv. For Respondents : Mr. Pulkit Arora, RP Mr. Satendra Khorania, Amol Vyas, IRP Mr. P. Nagesh, Sr. Adv. for R1

ORDER

(Hybrid Mode)

Per: Justice Rakesh Kumar Jain; (Oral)

05.08.2025 : This appeal is directed against the order dated 11.09.2024,

passed by the NCLT, Jaipur by which CP (IB) No. 19/JPR,2023 filed under

Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') by

Operational Creditor, namely, Ace Cardiopathy Solutions Pvt. Ltd. for the

resolution of its debt against the Corporate Debtor, namely, Cardiac Care and

Allied Health Pvt. ltd. has been admitted and Satendra Prasad Khorania was

appointed as the Interim Resolution Professional (IRP).

2. At the time of preliminary hearing on 17.09.2024, this court had passed

the following order:-

"Ld. Counsel for the Appellant submits that the application under Section 9 was filed for an amount of Rs. 1,79,98,948.93/- plus interest. It is submitted that there was a pre-existing dispute since the issue was raised by the corporate debtor on 2

24.09.2022 to which a reply was also received on 26.09.2022 without addressing the issue.

It is submitted that the corporate debtor is running a hospital and the payments in issue are only for five months' period and prior to that and subsequent to that all payments have been made to the supplier and due to certain issues regarding the payments, the payment was not made.

It is submitted by Counsel for the Appellant that after receipt of the demand notice reply was also given on 03.03.2023 which is notice of dispute and hence the adjudicating authority ought not to admit the section 9 application.

Submission needs scrutiny. Issue notice. Let Reply be filed within two weeks from today. Rejoinder, if any, be filed within two weeks thereafter.

List this appeal for admission/disposal on 18.10.2024. Subject to appellant depositing the principal amount within four weeks from today. No further steps shall be taken in terms of the impugned order dated 11.09.2024.

In the meantime, the impugned order shall remain stayed."

3. Counsel for the Appellant has submitted that an amount of Rs.

179,98,948.93/- has been deposited by the Appellant by way of a demand

draft in the name of the Registrar of this court.

4. Counsel for the Appellant has submitted that the CD had set up the

defence of a pre-existing dispute between the parties which has been rejected

by the Tribunal only considering the letter dated 24.09.2022 and not the other

correspondence between the parties in which the said dispute was highlighted

and hence it was not a moon shine defence rather it was a defence on the

basis of which the application filed under Section 9 would not have been

maintained.

5. Counsel for the Appellant has submitted that Respondent / OC was

regularly supplying medical consumables to the Appellant/CD which is a

hospital situated at Jaipur.

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6. It is the case of the Appellant/CD that there were certain objections

raised by ECHS about the supply of stents. In this regard, the Appellant/CD

received a letter dated 18.08.2022. The text of the letter dated 18.08.2022 is

reproduced as under:-

4

7. After receipt of the letter, it is alleged that the Appellant/CD had sent

a letter to Respondent/OC on 28.08.2022 raising a dispute about the supply

of tainted material. The letter dated 28.08.2022 read as under:- 5

8. It is submitted by the Appellant that no reply to this letter was given by

Respondent/OC whereas the Appellant received another information from

ECHS on 09.09.2022. The text of the letter dated 09.09.2022 is also

reproduced as under:-

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9. It is further submitted that it was followed by letter dated 09.12.2022.

The text of the letter dated 09.12.2022 is also reproduced as under:-

10. Counsel for the Appellant has submitted that the CD received a demand

notice dated 11.02.2023 under Section 8 of the Code which was duly 7

contested by way of a reply dated 03.03.2023 but thereafter, the application

under Section 9 came to be filed by the OC.

11. It is also submitted that during the pendency of the proceedings, the

Appellant/CD filed an additional affidavit dated 21.03.2024 in which the

letter dated 28.08.2022 was set up as defence as Annexure R11. The said

affidavit is also reproduced as under:-

8 9

12. It is further submitted that the OC did not choose to file any counter to

the aforesaid affidavit and the letter dated 28.08.2022 which was brought on

record by an affidavit which also escape the notice of the Tribunal in which

the Appellant has, in so many words, raised a dispute about the quality of

the material being supplied by the OC to the CD.

13. It is argued by the Appellant/CD that had this letter been also taken

into consideration a/w letters dated 18.08.2024, 09.09.2022 and 09.12.2022,

the Tribunal would not have reached to the conclusion that defence set up by

the Appellant/CD is a moon shine defence and has to be ignored.

14. On the other hand, Counsel for Respondent/OC has vehemently

argued that there is no defect or error in the impugned order which calls for

any interference by this court because the letter dated 24.09.2022 was duly

replied by Respondent and the text of the letter dated 24.09.2022 is only in

regard to the modality of the payment etc. and not regarding the discrepancies 10

as alleged by the Appellant. The letter dated 24.09.2022 and the reply to the

said letter dated 26.09.2022 are also reproduced as under:- 11 12

15. Counsel for Respondent has further argued that the additional affidavit

with which the letter dated 28.08.2022 is stated to be placed on record is in

fact not placed on record. It is also submitted that the affidavit is dated

21.03.2024 whereas the next date before the Tribunal was 22.03.2024 in

which it is not reflected in the order that the said affidavit filed by the

Appellant was taken on record. It is also submitted that even in the written

submissions filed by the CD before the Tribunal there is no reference of the

affidavit dated 21.03.2024, therefore, the entire argument of the Appellant is

an afterthought which has been raised to wriggle out of the order passed by

the Tribunal by which the application filed under Section 9 has rightly been

admitted.

16. In rebuttal, Counsel for the Appellant has pointed out that the letter

dated 28.08.2022 which was filed alongwith the additional affidavit has been

referred to in the grounds in Para HH of the appeal which has not been denied

in the reply filed before this court that the said affidavit was in fact filed. He

has therefore, submitted that once the document Annexure R11 dated

28.08.2022 was on record then it was incumbent upon the part of the

Tribunal to have considered the said document in order to hold that as to

whether the defence set up by the CD was a moon shine defence or a genuine

one.

17. We have heard Counsel for the parties and perused the record with

their able assistance.

18. For the purpose of contesting the application under Section 9, the

defence available to the CD are that there is pre-existing dispute and that

payment has already been made but it cannot be taken for the first time in 13

reply to the demand notice and has to be there before demand notice is served

by the OC and reply to the demand notice is filed. The Tribunal has recorded

in its order that the only letter which has been relied upon by the Appellant

is dated 24.09.2024 and it has been held that the said letter only talks of

negotiations qua the amount to be paid by the CD to the OC, therefore, the

Tribunal held in para 18 and 21 of the impugned order that except for

24.09.2024 there is no other communication / evidence on record for the

purpose of determining as to whether the dispute raised by the Appellant was

genuine or not.

19. In our considered opinion, once the letter dated 28.08.2022 has been

brought on record by way of an additional affidavit and the copy of the

affidavit was given to the OC which is not denied, Respondent should have

come forward to contest the said affidavit and the letter dated 28.08.2022 and

the Tribunal should have taken into consideration the said letter dated

28.08.2022 to determine as to whether because of the letter dated 28.08.2022

there was any pre-existing dispute between the parties for denying the

admission of the application filed under Section 9 of the Code, therefore, there

is an error in the impugned order of not considering not only the letter dated

28.08.2022 but also the letters dated 18.08.2022, 09.09.2022 and

09.12.2022 which are the basis for the letter written by the CD on 28.08.2022

in which the CD had raised the issue regarding the goods supplied to the

hospital by the OC and which was pointed out repeatedly by Government

vide their letter dated 18.08.2022, 09.09.2022 and 09.12.2022.

20. In such circumstances, we feel that the ends of justice would meet if

the impugned order is set aside and the matter is remanded back to the 14

Tribunal to have a relook into the entire matter after considering all the

documents on record and by-passing a speaking order.

21. Needless to mention that the Tribunal shall have to provide an

opportunity to the respondent to file a counter of affidavit, if it is not filed

already and to contest the same.

22. With these observations, the present appeal succeeds and the

impugned order is set aside.

23. Before parting with this order, it is hereby directed that the amount

deposited by the Appellant, in terms of the order passed by this Court on

17.09.2024, shall be returned by the Registrar within one month from the

date of passing of this order to the Counsel for the Appellant.

24. Counsel appearing on behalf of the IRP/RP has submitted that during

the proceedings, he had incurred some CIRP costs to which he is entitled to.

In this regard, we observe that IRP/RP may file an appropriate application

before the Tribunal for the purpose of recovery of the CIRP costs.

25. We also hasten to add that while disposing of this appeal and

remanding the case back to the Tribunal, we have not made any observation

on the merit of the case and all the issues are kept open for the Tribunal to

decide after hearing both the parties.

26. Mr. P. Nagesh, Sr. Adv. has submitted that since it is a matter of 2023,

therefore, the Tribunal may be requested to decide the same as early as

possible but preferably within a period of three months from the date of

appearance of the parties before it. We order accordingly.

27. The parties are directed to appear before the Tribunal on 25th August,

2025.

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28. I.A., if any, pending are hereby closed.

29. The parties shall bear their own costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Justice Mohammad Faiz Alam Khan] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

Sc/RR