Jungheinrich Lift Truck India Pvt.Ltd vs United Cold Chain & Food Processing Ltd

Jungheinrich Lift Truck India Pvt. Ltd. ...Appellant

Vs.

United Cold Chain & Food Processing Ltd. ...Respondent

Present: For Appellant: -Mr. Rahul Sahasrabuddhe, Company Secretary.

For Respondent: - Mr. Sandeep Sharma and Mr. R.D. Dubey, Advocates.

O R D E R

18.04.2019─ Learned counsel for the Appellant submits that free

certified copy of the impugned order was handed over to the Appellant on

7th September, 2018 and the appeal having filed on 23rd October, 2018.

Thus, there is a delay of 15 days.

Having heard learned counsel for the Appellant and being satisfied

with the grounds, delay of 15 days in preferring the appeal is hereby

condoned. I.A. No. 2023 of 2018 stands disposed of.

The Appellant filed an application under Section 9 of the Insolvency

and Bankruptcy Code, 2016 ("I&B Code" for short) against 'United Cold

Chain and Food Processing Ltd.'- ('Corporate Debtor'). The Adjudicating

Authority (National Company Law Tribunal), New Delhi (Court-III),

Contd/-.................

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by impugned order dated 28th August, 2018 rejected the application on

the ground of pre-existence of dispute.

Learned counsel appearing on behalf of the Appellant submitted

that there was no pre-existence dispute and referred to different

documents to suggest that in fact there was no dispute.

Though the Respondent has appeared and filed affidavit. Learned

counsel for the Respondent has failed to bring on record any document

to suggest that before the issuance of demand notice under Section 8(1),

the Respondent had raised any dispute with regard to quality of goods or

short supply of goods.

On the other hand, the record suggests a 'High Seas Sale Contract'

for import of consignment was made by the Appellant to the 'Corporate

Debtor' and the 'Corporate Debtor' cleared the goods directly. The amount

due is much more than Rs.1 Lakh. The ground taken by the Respondent

is that the sale has not been completed cannot be taken into

consideration as admittedly they have received the goods and has not

made the payment.

The Adjudicating Authority on wrong assumption of facts and

taking into consideration the irrelevant facts erred in holding that there

is pre-existence dispute.

Company Appeal (AT) (Insolvency) No. 768 of 2018 -3-

For the reasons aforesaid, the impugned order dated 28th August,

2018 is set aside. The case is remitted to the Adjudicating Authority to

pass appropriate order after notice to the Respondent.

However, this order will not come in the way of the Respondent to

settle the claim with the Appellant.

The appeal is allowed with aforesaid observations and directions.

No costs.

(Justice S.J. Mukhopadhaya) Chairperson

Ar/g

Company Appeal (AT) (Insolvency) No. 768 of 2018