Drulum India Pvt. Ltd vs Sharma Kalypso Pvt. Ltd

M/s. Drulum India Pvt. Ltd. ...Appellant

Versus

M/s. Sharma Kalypso Pvt. Ltd. ...Respondent

Present:

For Appellant : Mr. Sarwar Raza, Mr. Takreem Ahsan Khan, Ms. Umama Zehra and Mohd. Waseem Akram, Advocates

ORDER

09.07.2018 The appellant (Operational Creditor) filed an application

under Section 9 of the Insolvency and Bankruptcy Code, 2016(hereinafter

referred to as the 'I&B Code') for initiation of 'corporate insolvency resolution

process' against 'M/s. Sharma Kalypso Pvt. Ltd.' (Corporate Debtor). The

Adjudicating Authority (National Company Law Tribunal) Bench III, New Delhi

by impugned order dated 22nd May, 2018 rejected the application on the ground

of 'existence of dispute'.

2. Learned counsel appearing on behalf of the appellant referred different

pages to show that there is no existence of dispute and the 'Corporate Debtor'

made frivolous attempt to deny the admitted dues and default. It is submitted

that the Adjudicating Authority failed to take into consideration the different

facts which suggest that the respondent was confused in counting the quantity 2

of goods delivered though the matter has already been resolved and that they

issued cheques, which were bounced.

3. On hearing the learned counsel for the appellant and on perusal of the

record, we find that the Adjudicating Authority heard both the parties and

considered the relevant objections raised by the Corporate Debtor, some of which

are quoted below:

"(iii) On facts, it is contended that goods have not been

supplied in full as per the purchase order dated

1.6.2017 and whatever supplies have been effected

in relation to the purchase order dated 1.6.2017 have

been supplied beyond time and that objections have

also been duly recorded to the knowledge of the OC

on the packing list dated 28.6.2017 annexed along

with the counter affidavit.

(iv) It is also contended that in relation to the invoice No.

IN1718TDS-046 dated 26.06.2017 has been

manipulated as the OC has conveniently removed

objections in relation to the number of boxes

delivered to the OC where endorsements have been

made by CD of the lesser quantity delivered.

(v) Further, documentary evidences has been also filed

to disclose in acknowledgement or receipt of goods

by the CD to the contrary as stated in the invoice

which only goes to show that the goods have not

been delivered to the CD as otherwise contended by

Company Appeal (AT) (Insolvency) No. 351 of 2018 3

the OC. In this connection, it is stated that while the

invoice claimed that it had supplied 650 boxes and 8

bundles of material, however, on actual receipt of

goods since it was found that CD had only received

588 boxes and 8 bundles and in view of the same,

objection was duly recorded therein.

(vi) The objection in relation to the non-delivery of goods,

it is contended can also be corroborated with

endorsement made in the packing list.

(vii) It is contended by the DC that in order to cover up the

objections which have been raised by the CD in

relation to supply of goods/material, OC had

deliberately filed illegible copy of logistics receipt

dated 27.6.2017 and in order to set the records

straight, a clear copy of the logistics receipt in

claimed to have been annexed along with the counter

affidavit which proves beyond doubt the shortage in

the supply of goods effected.

(viii) Contention is also taken that in relation to the

payment terms as contained in the purchase order,

CD was liable to make 50% of the payment within 20

days upon complete goods being supplied and the

remaining sum was to be paid 30 days thereafter

provided the goods were supplied within the time

specified. Thus, it is contended that the amount

Company Appeal (AT) (Insolvency) No. 351 of 2018 4

claimed in default is not payable due to non-supply

of the complete goods within the stipulated time as

the same is material for fixing the false ceiling based

on measurements and that the CD has suffered a

irreparable loss particularly when time was the

essence of the contract and the supply of goods were

not on time as also admitted by the OC vide emails

dated 16.06.2017 and filed as Annexure R-4 to the

counter affidavit."

4. In view of the aforesaid facts, the Adjudicating Authority came to a definite

conclusion that there is 'existence of dispute' and refused to admit the

application under Section 9 of the I&B Code, while we have noticed the plea

taken by the appellant that no reply pursuant to demand Notice was given by

the 'Corporate Debtor', but that will not take away the right of 'Corporate Debtor'

to take plea of 'existence of dispute' before the Adjudicating Authority at the time

of admission of application under Section 9 of the I&B Code..

5. The impugned order being reasoned one, we are not inclined to interfere

with the same. The appeal is accordingly dismissed. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/sk/

Company Appeal (AT) (Insolvency) No. 351 of 2018