Jeevan Birje Parashram vs M/S. Kamal Metal Corporation & Anr

Jeevan Birje Parashram ....Appellant Vs. M/s. Kamal Metal Corporation & Anr. ...Respondents For Appellant: Mr. Varun Singh and Mr. Purushottam Kr. Jha, Advocates. For Respondents:

ORDER

08.08.2023: IA No.3439 of 2023:- There is a delay of 14 days in filing

the Appeal. The ground taken is that the order which was passed on

06.06.2022 was received by the Appellant on 21.06.2023 due to which delay

was caused. Sufficient cause shown. Delay is condoned.

Heard Learned Counsel for the Appellant.

2. This Appeal has been filed against the order dated 06.06.2023 passed

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

Bench-V by which order the Adjudicating Authority admitted Section 9

Application filed by the Operational Creditor. The Operational Creditor filed

Application claiming an amount of Rs.1,21,73,639/- as operational debt. The

Adjudicating Authority issued notice to the Corporate Debtor and asked the

Corporate Debtor to file Reply. Inspite of serving of the notice, the Corporate

Debtor did not appear and Corporate Debtor sent an e-mail to the Operational 2

Creditor that they are looking forward to settle the matter and are in a dialogue

with the Banker to get financial assistance. The case was adjourned by the

Adjudicating Authority on the basis of said e-mail. Subsequently, Bench

ordered twice to serve notice which was delivered. Counsel appeared on behalf

of the Corporate Debtor on 21.02.2023 and he was asked to file a reply. When

again the matter was listed on 17.04.2023, the Corporate Debtor did not

appear. The Adjudicating Authority thereafter proceeded and passed an order

admitting Section 9 Application. The Adjudicating Authority after noticing the

ledger of the Operational Creditor and report of the NSeL dated 28.12.2020

admitted Section 9 Application.

3. Counsel for the Appellant challenging the order contends that the

amount was less than the threshold since the payment has been shown in the

ledger is only Rs.5 lakh and whereas the payment made was of Rs.10 lakhs.

He further submits that the Application was barred by Section 10A. He

submits that the interest could not have been levied. He further referred to the

legal notice which was issued on 27.09.2020 by the Operational Creditor and

has referred to paragraph 11.

4. We have considered the submissions of the Counsel for the Appellant

and perused the record.

5. The Adjudicating Authority in paragraphs 6.3 and 6.4 made following

observations:-

"6.3 On 09.04.2021, the Bench ordered Court Notice to be served upon the Corporate Debtor, by the NCLT Registry, to appear on 01.07.2021 and file its reply in the matter. On 01.07.2021, none appeared on

Comp. App. (AT) (Ins) No. 1007 of 2023 & I.A. No. 3439 of 2023 3

behalf of the Corporate Debtor. However, counsel for the Operational Creditor submitted before the Bench that he had received an Email from the Corporate Debtor side stating that they are looking forward to settling the matter and are in a dialogue with the banker to get financial assistance. Thereafter, the matter was again listed on 13.12.2021. None appeared on behalf of the Corporate Debtor.

However, the counsel for the Operational Creditor submitted before the Bench that they have received an Email from the Corporate Debtor acknowledging the liability and offering to settle the outstanding debt.

6.4 The matter was listed on 20.09.2022. This Bench ordered Court Notice dated 27.09.2022, to be served by the NCLT Registry, upon the Corporate Debtor to appear on 14.11.2022 and file its reply in the matter. The said Court Notice was delivered upon the Corporate Debtor on 11.10.2022. The matter was listed for hearing on 14.11.2022 and 22.12.2022. Due to paucity of time the matter adjourned to 21.02.2023, wherein Adv. Mr. Jigarkumar Gandhi appeared on behalf of the Corporate Debtor and undertook to file the reply and vakalatnama on behalf of the Corporate Debtor. The matter was again listed on 17.04.2023 for final hearing. However, none appeared on behalf of the Corporate Debtor. Neither any reply was filed."

6. When the Corporate Debtor inspite of ample opportunities does not

appear and file any defense, we are of the view that such Corporate Debtor

cannot be allowed to raise factual issues and question the findings recorded

by the Adjudicating Authority. It is clear that the Corporate Debtor sent an e-

mail that he wants to settle the matter and on that ground the matter was

adjourned. The Adjudicating Authority called the Corporate Debtor to appear

and issued notice, which was duly served. The counsel for the Corporate

Debtor appeared and even then he did not file any reply. We are of the view

Comp. App. (AT) (Ins) No. 1007 of 2023 & I.A. No. 3439 of 2023 4

that such Corporate Debtor cannot be allowed to now raise factual issue and

contend that the claim was less than Rs.1 Crore.

7. We further notice paragraph 11 of the notice issued by the Corporate

Debtor, which has been relied by the Appellant, provides as follows:-

"11. My client states that, it is pertinent to note that, after the Tri Party agreement dated 29/11/2019 executed between you no.1, our client firm and one M/s. Akaar Founders Pvt Ltd, for the clearance of due pending amount from you no.1,2,3,4 and no.5, M/s. Akaar Founders Pvt Ltd disbursed our client firm payment of Rs. 10 Lakhs for and on behalf of You no.1, same has been acknowledge by our client and same has been deducted by our client from total outstanding and net outstanding as on date is of Rs. 1,01,91,060/-(Rupees One Crore one Lakh, Ninety One Thousand and Sixty Only), since then You no. 1,2,3,4 and no.5 did not cleared outstanding amount towards our client."

8. In paragraph 11, the claim of the Operational Creditor was

Rs.1,01,91,061/-. Thus, the said notice in no manner help the Appellant.

9. Learned Counsel for the Appellant further contended that the

Application was barred by Section 10A. He submits that the date of default

mentioned is 11.03.2020. When the date of default is 11.03.2020, it is clearly

before the 10A period. Hence, we are of the view that the said ground does not

help the Appellant.

10. Learned Counsel for the Appellant has further referred to letter dated

22.02.2020 sent by the Operational Creditor. He submits that the Operational

Creditor has acknowledged the receipt of Rs.5 Lakhs on 13.02.2020 and Rs. 5

Comp. App. (AT) (Ins) No. 1007 of 2023 & I.A. No. 3439 of 2023 5

Lakhs on 22.02.2020. He submits that although second figure is mentioned

in the ledger, the first figure is not mentioned.

11. As observed above, the Appellant did not appear before the Adjudicating

Authority inspite of several opportunities and inspite of specific notice given

to him to appear before the Adjudicating Authority, counsel appeared and took

time to file reply and did not file reply. We are of the view that on such conduct

of the Corporate Debtor this Appellate Tribunal is not inclined to grant any

indulgence or consider any submission on the facts.

12. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Anjali/nn

Comp. App. (AT) (Ins) No. 1007 of 2023 & I.A. No. 3439 of 2023