Ganesh Ores Private Limited vs Deepak Steel And Power Limited

M/s. Ganesh Ores Pvt. Ltd. ....Appellant Vs. M/s. Deepak Steel and Power Ltd. ...Respondent For Appellant: Mr. Kartik Kurmy, Advocate. For Respondent:

ORDER

(Through Virtual Mode)

01.02.2022: Heard Learned Counsel for the Appellant.

2. This Appeal has been filed against the order dated 03.12.2021 passed

by the Adjudicating Authority (National Company Law Tribunal), Cuttack

Bench, Cuttack, by which the Application filed by the Appellant under

Section 9 has been rejected.

3. The Appellant claim to have issued several invoices to the Corporate

Debtor. The Operational Creditor has supplied material during the period

15.05.2013 to 18.06.2013 and issued number of invoices for supply of coal.

Last payment was received by the Operational Creditor on 15.07.2015. The

Appellant claim to have issued several letters asking for balance amount of

Rs.63,25,464/- and has issued a notice under Section 8 dated 09.08.2019

demanding the unpaid outstanding amount. Notice was replied by the

Corporate Debtor vide its reply dated 06.09.2019. In reply notice, it was 2

mentioned that there have been full and final settlement of the dues between

the parties on 15.07.2015. Hence, nothing is due and after four years, the

Operational Creditor for some malafide purpose has issued notice. The

Adjudicating Authority has rejected the Application. The Adjudicating

Authority although accepted the submission of the Appellant that

Application was not barred by time. However, Adjudicating Authority

believed the case of the Respondent that there is settlement on 15.07.2015

and there was a dispute raised by the Respondent regarding the dues.

4. Counsel for the Appellant challenging the judgment contends that the

Respondent themselves have in the Reply has stated that they had written-

off the amount on 20.07.2018, hence, the said reply itself is sufficient for the

acknowledgment within the meaning of Section 18 of the Limitation Act an

acknowledgment of debt. In this context, we refer to paras 3 and 4 of the

Reply notice where following was stated:-

"3. That on 20/07/2018 my client had written-off the said purported amount after full and final settlement of the dues between my client company and your company on 15/07/2015 settling all issues of quality, delay in supply, adjustments and various payments made. It appears that there has also been non-accounting of payments made by a perusal of your demand notice.

4. That be it noted that after the last payment made on 15/07/2015 there has been no communication between us signifying the closure of our accounts and it appears that after 4 years your client has for some mala fide purpose directed you to issue the said demand notice which has no basis neither in the history of transaction nor in law against which we reserve our right to take such legal actions against your clients as prescribed in law."

Comp. App. (AT) (Ins.) No. 96 of 2022 3

5. The Adjudicating Authority has accepted the submission that

Application was not barred by time but we are satisfied that notice of dispute

which was given by the Respondent was sufficient to accept the claim of the

Respondent that claim was disputed. Further fact which has weighed with

the Adjudicating Authority that after 15.07.2015 for about four years no

demand notice was issued to the Corporate Debtor except the notice under

Section 8. Other notices were not found to be proved. That was a reason the

Adjudicating Authority accepted the case of the Respondent i.e. settlement

took place on 15.07.2015 when last payment of Rs.3 Lakhs was made by the

Corporate Debtor. The mere fact that amount was struck from the balance

sheet on 20.07.2018 in no manner prove that the Corporate Debtor has

acknowledged the debt and is denying the settlement made on 15.07.2015.

The circumstances under which the amount continued to be on balance

sheet and was struck on 20.07.2018 are not on the record but that itself is

not sufficient to denying the case of the Respondent that there was

settlement on 15.07.2015 and thereafter there was no due.

6. We thus, are of the view that the Adjudicating Authority has rightly

rejected the Application and there is no ground made out to entertain this

Appeal. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical) Anjali/nn

Comp. App. (AT) (Ins.) No. 96 of 2022