M/S. Hira International Limited vs M/S. Girdharilal Sugar And Allied ...

M/s. Hira International Ltd. Office: 147, Tukoganj Road, Dewas - 455001 (M.P.) Email: hira.international10@gmail.com Mob: +91 9826072377 ...Appellant. Versus M/s. Girdharilal Sugar & Allied Industries Ltd. Registered Officer: 45/47-A, Industrial Aria No. 1, A.B. Road, Dewas - 455001 (M.P.) Email: preind2002@yahoo.com Mob.: +91 9009527111 ...Respondent.

For Appellant: Mr. Vijayesh Atre, Advocate. For Respondent: Ms. Himani Chouhan, Advocate.

ORDER

(Virtual Mode)

02.08.2021 This Appeal has been filed by the Appellant-Operational

Creditor against the Impugned Dismissed Order dated 08.12.2020 passed by

the Adjudicating Authority (National Company Law Tribunal, Indore Bench,

Ahmedabad in TP/MP/182 of 2019 [CP (IB) No. 591/9/NCLT/AHM/2019].

2. The Application under Section 9 of IBC was filed by the Appellant-

Operational Creditor against Respondent- "M/s. Girdharilal Sugar and Allied

Industries Ltd."- the Corporate Debtor. The Appellant filed the Application

against the Corporate Debtor claiming outstanding Operational Dues of Rs.

59,75,055/-. The Appellant claims that the Appellant had supplied Soya Bean

to the Corporate Debtor as per the commercial arrangement and the supply

was made as per Bills in July, 2015.

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3. The Application under Section 9 of IBC of the Appellant came to be

dismissed by the Adjudicating Authority holding that the debt was time-

barred. Thus the present Appeal.

4. We have heard the Learned Counsel for the Appellant as well as the

Learned Counsel for the Respondent and perused the Record.

5. The Learned Counsel for the Appellant referred to the reasons as to why

the Adjudicating Authority dismissed the Application. The concerned

paragraphs from the Impugned Order may be reproduced for reference:

"4. We have considered submissions made on behalf of both the sides and material available on record. It is not in dispute that all the supply has been made by the Operational Creditor in the month of July 2015. It is also not in dispute that the Operational Creditor is operating in business to business segment i.e. it is not in case where such supplies are being made to numbers of clients on specific date or from different locations. Therefore, we do not find any substance in the claim of the Operational Creditor that date of Invoice and number of Invoice could not matched. Even, otherwise, the supply has been made in the month of July 2015, as stated earlier, and the application has been filed on July 18, 2019, hence, aspect of limitation is to be seen.

5. In this regard, reliance has been placed on payment of Rs. 2.00 Lacs claimed to have been received from the Corporate Debtor on 24.11.2017, however, from perusal of the record Bank statement of the Operational Creditor with ICICI Bank, it is noted that the said amount has been received form M/s. Premier Nutritions and not the Corporate Debtor. No material has been brought on record to show that name of the Corporate Debtor has been changed. In view of the fact that the Corporate Debtor has attached its Annual report for 2018- 19 in the name and style of M/s. Girdharilal Sugar and Allied Industries Limited., the name of the Corporate Debtor remained the same. Therefore, the said payment could not be said to have been made by the Corporate Debtor. Even otherwise a paltry payment, assuming to have been made by the Corporate Debtor, cannot extend the limitation period for all debts as each supply is an independent contract. The said petition is, therefore, not maintainable. Accordingly, the same is dismissed on the ground of limitation as well as on merit

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on consideration of facts regarding authenticity and validity of the Invoices so raised.

In the result, application under Section 9 stands dismissed and disposed of accordingly.

6. The Registry is directed to communicate a copy of this order to the Operational Creditor, Corporate Debtor after completion of necessary formalities, within seven working days and upload the same on website immediately after pronouncement of the order."

Referring to the above observations of the Adjudicating Authority, the

Learned Counsel for the Appellant has taken us to Page 220 and 221 of this

Appeal Paper Book where in the Registration Certificate of Corporate Debtor

for GST, the Legal Name of the Corporate Debtor and Trade Name of the

Corporate Debtor have been reflected. The Learned Counsel pointed out that

the Legal Name of the Corporate Debtor which is given in the Registration

Certificate is "Girdharilal Sugar and Allied Industries Limited" and the Trade

Name of the Corporate Debtor for the Purpose of GST recorded is "Primier

Nutritions Prop Girdharilal Sugar and Allied Indu". The Learned Counsel

submits that the Trade Name is only for the purpose of using it for the Unit

of the Corporate Debtor whose Legal Name is recorded and both are same

entity. The Learned Counsel thus submits that the Adjudicating Authority

confused itself while making the observations as seen in Paragraph 5 (Supra)

to say that the payment made was not by the Corporate Debtor.

6. The Learned Counsel after referring to the above documents has

pointed out that if the Section 9 Application is perused (Annexure A-4 Page

41 @ 44) the Appellant had pointed out in Part-IV of the Application that the

last bill was of 28.07.2015 and that the Corporate Debtor made RTGS

Payment on 24th November, 2017. The RTGS payment can be seen in the Bank

Statement of ICICI Bank which is at Annexure A-4, Page 190. This Bank

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Statement issued to the Appellant shows at Entry No. 127 payment of Rs. 2

Lacs by the Corporate Debtor to the Appellant. The name used for the purpose

of making the payment was "Premier Nutritions". We find considering the

GST Registration Certificate, it must be said that the payment was made by

the Corporate Debtor on 24th November, 2017. The Learned Counsel then

submits that the Section 9 Application was filed on 17.07.2019 and thus the

Application was within Limitation.

7. The Learned Counsel for the Respondent referred to the detail Reply

which was filed by the Corporate Debtor copy of which is at Page 223. Learned

Counsel for the Respondent has also argued on similar lines as mentioned in

the Reply which was filed before the Adjudicating Authority that the Corporate

Debtor was in financial crisis and that its Account had been declared Non-

Performing Assets and that the Corporate Debtor was not having any profit in

the business.

8. Considering the submissions made by the Learned Counsel for the

Appellant, it does appear that from the last bill dated 28.07.2015 if the

payment made on 24th November, 2017 is considered and then filing of the

Application on 17.07.2019 under Section 9 of IBC is seen, the debt cannot be

claimed to be time-barred. We do not agree with the Adjudicating Authority

to refer the amount as paltry payment. For the purposes of Section 19 of the

Limitation Act, the extent of amount would not be relevant and Part-payment

if made would have to be taken into account. Section 19 of Limitation Act does

not create distinction on the basis of quantum of payment.

9. The Learned Counsel for the Appellant has then referred to Paragraph

2 of the Impugned Order where the Adjudicating Authority expressed doubt

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with regard to the Invoices to observe that the subsequent date Invoice for a

prior transaction is there. The Adjudicating Authority had observed as under:

"2. (2) The Learned Counsel for the Operational Creditor appeared and narrated the basic facts. A query was raised as regard to the discrepancy in the number of Invoice and date of Invoice i.e. Invoice No. 304 was shown to have been issued on 25.07.2015, whereas, Invoice No. 274,275 and 276 have been issued on 28.07.2015. The Learned Counsel submitted that two sales counters were maintained and because of that it happened. Learned Counsel drawn our attention to Form 3 duly served on the Corporate Debtor. It was also brought to our notice that no dispute, had been raised and only plea which was taken by the Corporate Debtor was that they had discontinued this business and they could not pay the outstanding amount due to financial constraints."

The Learned Counsel submits that the concerned Invoices are on record

as can be seen at Page 109. It is argued that in the particular season of Soya

Bean it is common for the Operational Creditor to have different sale counters

and such sequences of the Invoice number cannot be subject of suspicion and

it does not make any difference. The Learned Counsel also points out

Document at Page 115 to submit that the Corporate Debtor had received the

goods mentioned and even in the Reply Corporate Debtor did not raise any

such disputes and thus the Adjudicating Authority unnecessarily expressed

suspicion on record to the Invoices which were not necessary when the

Corporate Debtor was not disputing the same.

10. Having heard Learned Counsel for the Appellant and Learned Counsel

for the Respondent and perusing record, the doubt raised by the Adjudicating

Authority with regard to the invoices, we will ignore.

11. There is nothing shown that the Application under Section 9 of IBC was

in any other manner incomplete.

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12. For the above reasons, the Appeal is allowed. The Impugned Order is

quashed and set aside. The matter is remitted back to the Adjudicating

Authority. The matter may be placed before the Adjudicating Authority on 17th

August, 2021. The Adjudicating Authority will admit the Application and pass

the necessary consequential orders on Admission (unless the Corporate

Debtor and Appellant settle the dues before the Adjudicating Authority passes

formal orders of Admission of Application).

13. Parties to appear before the Adjudicating Authority on 17.08.2021.

Appeal is disposed accordingly. No order as to costs.

[Justice A.I.S. Cheema] The Officiating Chairperson

[Dr. Alok Srivastava] Member (Technical)

Basant B./gc.

Company Appeal (AT) (Ins) No. 23 of 2021