Durgesh Kumar Sharma vs M/S Rangraj Realtors Pvt Ltd

Durgesh Kumar Sharma ....Appellant Proprietor, Salasar builders Vs. Rangraj Realtors Pvt. Ltd. ...Respondent For Appellant: Mr. Amit Agrawal, Ms. Gitanshi Arora, Advocates.

ORDER

(Through Virtual Mode)

26.04.2022: Heard Learned Counsel for the Appellant.

2. This Appeal has been filed against the order dated 25.01.2022 passed

by the Adjudicating Authority (National Company Law Tribunal), New Delhi,

Bench-IV by which Application filed by the Appellant under Section 9 of the

Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) has been

rejected.

3. The Appellant claiming to be Operational Creditor has filed Section 9

Application for outstanding amount of Rs.1,86,900/-. The Adjudicating

Authority issued notice and after considering the reply of the Corporate Debtor

has dismissed the Application. The Adjudicating Authority while dismissing

the Application has returned following findings in paragraph 5:-

"5. We have heard the arguments of Ld. Counsels for the applicant and the respondents and perused the case 2

records. From the bare perusal of the file it can be inferred that admittedly there is no agreement entered into between parties submitted for supply of building material despite the fact both the applicant is alleged to have been dealing in supply of building material, whereas, the respondent is builder. Moreover, only one bill had been put on record, but the same was never endorsed by any authorized representative of the respondent. Although, the demand notice was issued via speed post and email, however, the respondent simply replied to the email stating, "Thanks for your mail with attachment of demand notice". Later on, when the present petition has been filed by the applicant, the respondent admitted the claim simply. It is pertinent to note that prior to the issuance of above said bill, there was not a single correspondence between them qua raising and demanding of bill amount or supply of material also. There is nothing on record to establish the fact that the respondent ever made any demand of supply of the bricks etc. to the applicant herein. These all facts shows that the bill raised is forged and fabricated to make out false ground to put the respondent under CIRP. These all act and omissions on the part of the applicant and respondent clearly shows that there is an active collusion between them to defraud the other creditors and to facilitate the respondent to enjoy the rigors of the IBC Code. Further, had there been any genuine admission on the part of the respondent, respondent might have paid the disputed amount despite the fact the said petition is pending before this Tribunal year and alleged amount is only of one lac. It is well

Comp. App. (AT) (Ins.) No. 300 of 2022 3

settled principle of law that NCLT can't be allowed to be played at the hands of the unscrupulous parties. In sequel of the above stated facts and circumstances, this tribunal is of affirm view that the present petitioner failed to establish on record that he actually supplied the building material to the respondents and an amount of rupees one lac was due rather the petition is collusive in nature. Hence, the present petition deserves to be dismissed.

Resultantly, the present petition stands dismissed with no order to costs.

File be consigned to records."

4. Learned Counsel for the Appellant submits that there was no basis for

recording the finding against the Appellant of any collusion or holding that bill

raised by the Appellant was forged and fabricated. Learned Counsel for the

Appellant has also placed reliance on the judgment of this Tribunal in "Sunil

Parmanand Kewalramani vs. Kestrel Import & Export Pvt. Ltd.- Company

Appeal (AT) (Ins.) No. 847 of 2020".

5. We have considered the submission of the Counsel for the Appellant and

perused the record.

6. The observations and conclusion which has been drawn by the

Adjudicating Authority are based on the sequence of the events and facts of

the case. The Adjudicating Authority has returned the finding that there was

not a single correspondence between the Operational Creditor and the

Corporate Debtor qua raising and demanding of bill amount or supply of

material. No order of supply of material and demand for payment prior to filing

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of the Application are the reasons which have been relied and the Adjudicating

Authority has come to the conclusion that the bill raised is forged and

fabricated and has been raised only for initiation of CIRP of the Corporate

Debtor who is the builder. We have also noticed that bill as relied by the

Appellant does not contain any GST number which reaffirms the view that bill

was a bogus bill prepared only for filing the Section 9 Application.

7. Learned Counsel for the Appellant submits that the mere fact that the

amount which was due was small amount does not justify any finding that

there was any collusion between the Appellant and the Respondent.

8. We agree with the submission of the Counsel for the Appellant that the

quantum of the amount may not be relevant for taking a decision either to

reject or admit the Application but on the sequence of the events and the facts

which were before the Adjudicating Authority, the Adjudicating Authority

rightly came to the conclusion that there was active collusion between the

parties to defraud the other creditors and to facilitate the Respondent to enjoy

the rigors of the I&B Code.

9. In the facts of the present case, we see no reason to take a different view

from one which have been taken by the Adjudicating Authority. The Judgment

of this Tribunal in Sunil Parmanand Kewalramani's case was on its own facts

and the findings returned were with regard to the facts of the said case. There

cannot be any dispute to the proposition that for returning the finding of the

collusion, there has to be materials. We are of the view that the present case

does not lack material or facts to come to the conclusion of collusion.

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10. We do not find any merit in the Appeal. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Shreesha Merla] Member (Technical)

Anjali/nn

Comp. App. (AT) (Ins.) No. 300 of 2022