Hari Singh Thakur vs Universal Enterprises

IN THE MATTER OF: Hari Singh Thakur ...Appellant Versus Universal Enterprises ...Respondent

Present: For Appellant: Mr. Manoj Kumar Garg and Mr. Navneet Kumar, Advocates For Respondents: Mr. Mahavir Singh, Mr. K.K.Mishra, Mr. Amitesh Giroti, Advocates.

ORDER

(Per : Justice Rakesh Kumar Jain)

23.08.2022: This appeal is directed against the order dated 09th April, 2019

passed by the 'National Company Law Tribunal, New Delhi Bench -IV' ('the

Adjudicating Authority') by which an application filed under Section 9 of the

'Insolvency and Bankruptcy Code, 2016' (in short 'Code') read with Rule 6 of the

Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016

(in short 'Rule') has been admitted.

2. In short the submission made by the Appellant is that the amount in

question is not a 'debt'. Therefore, it does not fall within the definition of Section

3(11) of the Code and thus the Application filed under Section 9 was not

maintainable. In this regard, he has referred to the 'Lease Agreement' dated

1 Company Appeal (AT) (Ins) No. 581 of 2019 & I.A No.1786 & 1787 of 2019 12.12.2016 which is appended by him with the 'Rejoinder' as Annexure R/2

(page No. 64) to contend that it was a trading transactions between the parties

and the amount claimed has not become due.

3. On the other hand, Counsel for the Respondent has submitted that in the

said Lease Agreement, the Appellant has itself admitted that it had to pay Rs.

1,82,77,290/- which was due as on 01.12.2016. He has also pointed out that

out of trade debit amount of Rs. 1,82,77,290/-, as sum of Rs. 65 lac was reserved

and booked as security deposit against the equipment which was handed over

to the Respondent for a period of 12 months w.e.f. 01.12.2016 against which the

Respondent was not to pay any leasing charge as mentioned in Clause 3(c) of the

said Lease Agreement. It is further submitted that even if the contention of the

Appellant is considered that the equipments have not been returned which have

been valued by the Appellant to the tune of Rs. 65 lac, the Appellant has not

paid the balance amount out of Rs. 1,82,77,290/- and, therefore, the Application

under section 9 of the Code was rightly admitted by the Adjudicating Authority.

4. Counsel for the Respondent has also referred to the invoices, appearing in

Volume-II of the Appeal Paper book, which have been placed before us, from which

it is apparent that the amount which has sought to be recovered from the

Appellant is against those invoices. Counsel for the Respondent has also

submitted that the notice under Section 8 of the Code was sent to the Appellant

through WhatsApp and email also.

2 Company Appeal (AT) (Ins) No. 581 of 2019 & I.A No.1786 & 1787 of 2019

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

able assistance and are of the considered opinion that the there is no error in

the impugned order which requires our interference because the Lease

Agreement, which has been mainly relied upon by the Appellant, in order to show

that it was executed for the purpose of trading, reflects that the Appellant was

in Debt of Rs.1,82,77,290/-, assessed as on 01.12.2016 and in view thereof, the

Appellant, who is not having the liquidity at that time, handed over the

machinery (equipment) to the Respondent for the purpose of manufacturing of

sanitary napkins and wanted an adjusted of a sum of Rs. 65 lac in case the

equipments is not returned after the expiry of the prescribe period. The fact

remains that there were no leasing charges and that the rest of the amount after

deducting Rs. 65 lac from Rs.1,82,77,290/- has not been paid, the Adjudicating

Authority has rightly come to the conclusion that it is a fit case in which the

Application filed under Section 9 of the Code deserves admission. Counsel for

the Appellant has also argued that notice under Section 8 of the Code was not

served to the Appellant by the Operational Creditor/Respondent No.1. On the

other hand, Counsel for the Respondent has submitted that notice was sent to

the Appellant through WhatsApp and email also. Counsel for the Appellant has

not denied this fact that notice was served through WhatsApp and email. In view

thereof, there is hardly any force in the argument of counsel for the Appellant in

this regard.

6. No other point has been raised.

3 Company Appeal (AT) (Ins) No. 581 of 2019 & I.A No.1786 & 1787 of 2019

7. In view of the aforesaid facts and circumstances, we do not find any merit

in this appeal. Hence, the same is hereby dismissed.

Pending applications, if any, stands disposed of.

Interim order, if any, passed by this Tribunal, stands vacated.

No order as to costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

Raushan/RR

4 Company Appeal (AT) (Ins) No. 581 of 2019 & I.A No.1786 & 1787 of 2019