Ellenbarrie Exim Ltd vs Respondent

IN THE MATTER OF: Ellenbarrie Exim Ltd. ...Appellant

Versus

--- ...Respondent

Present:

For Appellants : Mr. Saikat Sarkar, Mr. Shashank Agarwal, Mr. Saurav Jain, Ms. Tanushree Paul and Mr. Sahil Sharma, Advocates. For Respondent :

ORDER

(Hybrid Mode)

01.04.2024 Heard Counsel for the Appellant.

This Appeal has been filed against the order dated 09.11.2023 passed by

the National Company Law Tribunal, Division Bench, Court No. II, Kolkata, by

which Section 10 application filed by the Appellant has been rejected.

Learned Counsel for the Appellant submits that the Adjudicating

Authority in paragraphs 5.2 & 5.3 noticing certain inconsistency have

proceeded to reject the Section 10 Application. Learned Counsel for the

Appellant submits that details of debt and all litigations were disclosed before

the Adjudicating Authority and observations made in paragraphs 5.2 & 5.3

were not correct.

In this Appeal we had by our Order dated 09.01.2024 had directed the

Applicant for issuing fresh Notice under Section 10 in the Newspaper having wide circulation, in pursuance of our Order dated 09.01.2024 publication was

made and affidavit of service has been filed on 01.03.2024 which indicates that

publication in the newspapers were made in Financial Express and Ajkaal

Bengali Edition and Jansatta Hindi Edition on 01.02.2024.

No objection has been filed by any of the Creditors or any other entity in

this Appeal.

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

perused the record.

In first notice the observation made under paragraph 5.2 which is as

follows:

"5.2 We find that operational debt due to Gulf Dune FZE stood at Rs. 1,28,65,323 (which is in Page No. 269 of the petition) in the Balance sheet as at 31-3-2022 as against the CD's claim in his application as due for an amount of $ 1,63,80,454 which if converted in in to Indian rupees is nearly 100 times the due reflected in the balance-sheet as on 31.03.2022."

Learned Counsel for the Appellant submits that Operational Debt in the

Balance Sheet as on 31.03.2022 was Rs.1,28,65,323/-. It is submitted that

Adjudicating Authority has referred to amount of $ 1,63,80,454 which amount

was shown in Financial Year 2008-09 of the Balance Sheet and then the said

amount when converted into rupees as the conversion value as on 31.03.2022

comes to more than Rs.1,28,65,323/-.

It is submitted that conversion rate in FY 2008-09 as of FY 2022-23 is

almost double. Hence there was no inconsistency in the figures and the

observation of the Adjudicating Authority that if converted into Indian Rupees

is nearly hundred times the due reflected in the Balance Sheet as on

Comp. App. (AT) (Ins.) No. 17 of 2024 31.03.2022 can be no ground to reject Section 10 application. Conversion rate

has been doubled from FY 2008-09, the increased in the rupees is automatic

consequence.

Further, observation in paragraph 5.3 is also to the same effect where

the receivable from Bee Kay Distributors was of Rs.64,85,44,197/- is in the

Balance Sheet as on 31.03.2022 whereas figures in dollars has been reflected

in the Balance Sheet from FY 2008-09 and due to the conversion rate of the

dollar the amount is bound to double as on 31.03.2022.

So far as the observation made in paragraph 5.5 by the Adjudicating

Authority, Learned Counsel further submits that recovery letters were on the

record. He has referred to the letters before the Adjudicating Authority on

13.05.2019 which was sent by Mr. Ashok Chaudry letter dated 30.06.2015 and

18.08.2016 which were all written by Mr. Ashok Chaudry to the Corporate

Debtor.

It is submitted that the said amount was also reflected in the ledger and

the observation of the Adjudicating Authority that it is not shown in the notes

to account of the FY 2021-22 is not correct. Insofar as observation in

paragraph 5.6 where Adjudicating Authority made following observations:

"5.6. There is nothing on record that has been placed to show that any notice or recovery proceedings have been initiated by the said operational creditor even for the amount shown in the Balance sheet as on 31-03-2022, leave alone the amount claimed by the applicant as due in his application."

It is submitted that letters have already been referred of Mr. Chaudry

which were request for making the payment and the details of entire debt of

Comp. App. (AT) (Ins.) No. 17 of 2024 Financial Creditors as on 18.02.2023 and Operational Creditors at Page 96 of

the Appeal have been detailed with the name of the entity address, debt

incurred and amount in default. There was no reason to discard the said list of

Financial Creditors and the Operational Creditor.

We thus are satisfied that Adjudicating Authority rejected Section 10

application on insufficient grounds, debt and default was amply proved which

was reflected in the Financial Statements of the Corporate Debtor. No Creditor

has come up either before the Adjudicating Authority or before this Tribunal in

pursuance of the notices published in the newspaper to object the debt and

default.

We are satisfied thus Section 10 application was not required to be

rejected by the Adjudicating Authority in the facts of the case.

In result, we allow this Appeal, set aside the Order dated 09.11.2023,

revive the Company Petition IB No. 76/KB/2023 before the Adjudicating

Authority. Adjudicating Authority may pass a fresh order on the said

Application after copy of the Order is produced before the Adjudicating

Authority at an early date.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

himanshu/nn

Comp. App. (AT) (Ins.) No. 17 of 2024