Lata Gole vs Lcl Logistix India Pvt Ltd & Ors

Lata Gole ....Appellant Vs. LCL Logistix (India) Pvt. Ltd. & Ors. ...Respondents For Appellant Mr. Navin Pawha, Sr. Advocate with Mr. Arvind Kumar Gupta, Mr. Shivank S. Singh, Advocates. For Respondents

ORDER

02.11.2023: Heard Learned Senior Counsel for the Appellant.

2. This Appeal has been filed against the order dated 20.10.2023 passed

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

Bench, Court-V, by which Section 9 Application filed by the Operational

Creditor has been admitted.

3. Operational Creditor was engaged in the business of Sea freight, Air

Freight, Container Freight, warehousing service, IATA agents and other

business related to maritime and logistics industry. Corporate Debtor through

the Director approached the Operational Creditor for providing them services

for transporting goods and had made freight bookings of consignment of

various shippers through the Operational Creditor. Invoices were issued by

the Operational Creditor to the Corporate Debtor under which the amount

credit period was 45 days. The payments were not made against the invoices,

hence, the Demand Notice dated 31.08.2019 was issued under Section 8 and 2

thereafter the Application was filed by the Operational Creditor claiming total

amount of Rs.1,72,65,837.38/- which included principal and interest. Reply

to the Demand Notice was sent by the Corporate Debtor on 09.09.2019.

However, after filing of Section 9 Application inspite of opportunity to the

Corporate Debtor, no reply was filed by the Corporate Debtor. The

Adjudicating Authority heard the parties and by impugned order admitted

Section 9 Application.

4. Learned Counsel for the Appellant challenging the order contends that

in the reply to Demand Notice, Corporate Debtor has raised several issues

which fully proves pre-existing dispute and the mere fact that no reply was

filed to Section 9 Application was not relevant and the Adjudicating Authority

ought to have considered the reply to the demand notice dated 09.09.2019. It

is further submitted that the credit period was provided of 45 days and before

the expiry of credit period, the Operational Creditor deposited three cheques

which were security cheques. A proceeding under Section 138 of the

Negotiable Instrument Act has also been initiated by the Operational Creditor

on account of dishonor of cheques. It is submitted that before 45 days, no debt

shall become due.

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

and perused the record.

6. In paragraph 12 of the judgment, the Adjudicating Authority made

following observations:-

Company Appeal (AT) (Insolvency) No. 1421 of 2023 3

"12. No reply was filed on behalf of the Corporate Debtor despite ample opportunity and vide order dated 18.05.2023 the right to file reply was forfeited."

7. Insofar as the submission of the Appellant that reply to Demand Notice

has not been adverted to, suffice it to say that the Adjudicating Authority has

adverted to the reply to the Demand Notice in paragraph 15 of the judgment

where following observations have been made:-

"15. The Petitioner has further proved on record the demand notice dated 31.08.2019 calling upon the Respondent to make the payment of the outstanding dues. In reply dated 09.09.2019 to the demand notice the Corporate Debtor has simply stated that the cheques given as security has been misused to launch criminal proceedings against the Corporate Debtor. It has also been claimed that the Petitioner illegally withheld some of the bills of lading pertaining to some consignments to harass and pressurize the Corporate Debtor. However, no substantive pre-existing dispute has been raised in reply to the demand notice."

8. The Adjudicating Authority found that no substantive pre-existing

dispute has been raised in reply to the Demand Notice and the issue raised

has been adverted to.

9. The Learned Senior Counsel for the Appellant emphasize that no debt

will become due prior to expiry of 45 days, hence, the whole proceedings are

not in accordance with law.

Company Appeal (AT) (Insolvency) No. 1421 of 2023 4

10. In Demand Notice dated 31.08.2019, in particular of debt Column-2,

following was stated:-

Particulars of Operational Debt

2. AMOUNT CLAIMED TO BE Amount in default is IN DEFAULT AND THE Rs.1,72,65,837.38/- which DATE ON WHICH THE includes Rs.1,70,10,110.49/-

DEFAULT OCCURRED being the Principal amount as (ATTACH THE WORKINGS per the invoices issued along FOR COMPUTATION OF with Rs.2,55,726.89/- being DEFAULT IN TABULAR contractual interest @24% FORM) from end of the credit period of 45 days and more particularly calculated in tabular form in the Annexure A attached to this Notice. The said Annexure A also contains the date on which the default occurred.

11. Along with the Demand Notice, Annexure statement of showing

calculation of total debt has been mentioned. When we look into the invoices

and the due date, Demand Notice was issued after expiry of due date in all the

invoices. The statement filed along with the Demand Notice clearly indicates

that most of the invoices were of June 2019; one was of 04.07.2019 and one

was of 08.07.2019. Thus, 45 days of credit period came to an end with regard

to all invoices which are part of the Demand Notice. Thus, the submission of

the Appellant that no amount became due cannot be accepted.

12. Insofar as the submission that the cheques which were submitted in the

Bank by the Operational Creditor were security cheques, these are the issues

which need not be adverted to the present proceedings. Section 138

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proceedings have already been initiated and that can be looked into in the said

proceedings.

13. In view of the aforesaid, we do not find any error in the order of the

Adjudicating Authority admitting Section 9 Application. There is no merit in

the Appeal. The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Anjali/nn

Company Appeal (AT) (Insolvency) No. 1421 of 2023