M/S Lupin Dealers Pvt Ltd vs Ashish Vincom Pvt Ltd

IN THE MATTER OF: Lupin Dealers Pvt. Ltd. ...Appellant

Versus Ashish Vincom Pvt. Ltd. ...Respondent

Present: For Appellant: Aprajita Rao, Advocate For Respondent: Mr. Soumya Dutta, Advocate

ORDER

(Virtual Mode) 15.07.2022: This appeal is directed against the order dated

12.12.2019 passed by the Adjudicating Authority (National Company Law

Tribunal, Kolkata Bench, Kolkata) in CP (IB) No. 1171/KB/2019 in CA (IB)

No. 1636/KB/2019 whereby an application filed under Section 7 of the

Insolvency and Bankruptcy Code, 2016 (in short 'Code') read with Rule 4 of

the Insolvency and Bankruptcy (Application to Adjudicating Authority)

Rules, 2016 (in short 'Rules') has been dismissed only on the ground that

evidence was not before it to prove that the Applicant/Appellant had

actually advanced the loan to the Corporate Debtor which is sought to be

recovered as a creditor.

In brief, the case set up by the Appellant is that it had advanced a

sum of Rs. 40 lakhs on 24.07.2015 and Rs. 5 lakhs on 27.07.2015 to the

Corporate Debtor in two instalments by way of RTGS. Since the Corporate

Debtor failed to repay the interest on the amount which was advanced

hereinabove w.e.f. 31.03.2018 onwards, therefore, the Applicant has termed it as a default and claimed a sum of Rs. 67,74,256/- which includes interest

till the date 30.06.2019.

It is pertinent to mention that the Respondent did not file reply to the

application filed by the Applicant rather filed an application under Section

60(5) of the Code. Counsel for Appellant has submitted that after the

decision of the Tribunal on 12.12.2019, it came to their notice that the

Respondent has uploaded on the MCA Website their balance sheet for the

year ending 31.03.2019 in which an amount of Rs. 59,35,874.00 belonging

to the Appellant has been shown as a unsecured loan. It is submitted that

this fact was not within the notice of the Appellant when the application was

preferred under Section 7 of the Code on 12.07.2019, otherwise, this fact

would have also been included in the said application.

It is further submitted that this fact has now been pleaded

categorically in the grounds of appeal which read as under:-

"VII. (l) On scrutiny of the MCA website the Appellant came to know that the corporate debtor on 23.11.2019 had uploaded its audited Balance Sheet for the year ending 31.03.2019 reflecting the dues to the appellant for a sum of Rs. 59,35,874.00 being the debt due as on 31.03.2018 as per the records of the Appellant. The said Balance Sheet was uploaded by the Respondent on 23.11.2019 as an annexure to AOC-4 and as such could not form a part of the records of the Hon'ble Tribunal below. A copy of the AOC-4 alongwith Balance Sheet of the Corporate Debtor/Respondent for the year ending 31.03.2019 alongwith the MCA website printout for date of filing is annexed hereto and marked as Annexure-6."

It is argued by the Appellant that the Respondent has filed reply to

the memo of appeal instead of filing reply to the application and in the said

reply they have replied to the aforesaid paragraph in the following manner:

"The statement made in paragraph VII (l) is disputed to the extent that the Appellant for the first time introduced the documents in this present appeal. However, no leave is sought from this Hon'ble Tribunal to introduce new document for the first time in appeal. Thus, the document should not be looked into. At the cost or repetition, I say that the Appellant is not a Non-Banking Financial Companies and is not registered under the provision of RBI Act, 1934. Under such circumstances, I say that the Appellant was not in a position to advance loan to the Respondent or charge interest thereto."

It is submitted that the Respondent has deliberately avoided not to

reply to the fact pleaded by the Appellant about the amount which is shown

to the tune of Rs. 59,35,874.00 as a debt as on 31.03.2018 in the books of

accounts of the Respondent itself rather an evasive reply has been given.

Counsel for Appellant has, thus, argued that keeping in view of the

fact that there is an implied admission on the part of the Respondent about

the amount of debt due towards the Appellant as on 31.03.2018 of an

amount of Rs. 59,35,874.00 which includes the principal amount and the

interest and it falls within the definition of Section 5(8) of the Code for the

recovery of which the Appellant is entitled to maintain the Application filed

under Section 7 of the Code.

It is further submitted that this Appeal may be allowed and the order

of the Adjudicating Authority may be set aside and the matter may be

remanded back to it for passing an order afresh.

In reply, Counsel for Respondent has vehemently argued that there is

no error in the order of the Adjudicating Authority which can be interfered

with by this Appellate Tribunal because the Appellant had failed to produce

any evidence to show that it had advanced the aforesaid amount of Rs. 45 lakhs on which interest has also been accrued as well. He has further

submitted that the claim has become time barred.

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

able assistance.

The issue before us is as to whether there is evidence on record to

show that the Appellant had in fact advanced a sum of Rs. 45 lakhs as loan

which bears interest as well and the Appellant is, thus, entitled to recover

the said amount as a debt in terms of Section 7 of the Code?

It is true that the Appellant had filed the application under Section 7

of the Code on 12.07.2019 and has alleged that the amount of Rs. 45 lakhs

was transferred to the account of the Respondent through RTGS but there

was no evidence about the admission of that amount by the Respondent

because the Respondent did not deliberately file the reply to the application

and rather filed an application under Section 60 (5) of the Code. However, if

the amount was not actually due then there was no hindrance before the

Respondent to contest the application filed by the Appellant by filing a reply

thereto.

Be that as it may, the Appellant, as soon as came to know about the

accounts statement of the Respondent after it was uploaded on the MCA

Website, it brought the said information in this appeal by way of paragraph

VII(l). The Appellant has also appended a document as the annexure A-6 in

this appeal. If this information, now in possession of the Appellant was

incorrect, it could have easily been denied by the Respondent but the

Respondent has not denied it categorically and has remained evasive. It is

well settled that evasive replies are admissions. The Respondent has had the opportunity to contest the case set up by the Appellant in appeal but it has

miserably failed to do it in the presence of document Annexure A-6. Thus,

we are of the considered opinion that the present appeal deserves to be

allowed and the matter deserves to be remanded back to the Adjudicating

Authority for proceeding further in accordance with law while deciding the

said application filed under Section 7 of the Code after treating the same as

maintainable.

The present Appeal is, thus, allowed and the order of the Adjudicating

Authority is set aside. The matter is remanded back to it to decide afresh.

The Respondent may, if so adviced can take all the pleas available to

it for the purpose of challenging the application filed by the Appellant before

the Adjudicating Authority.

The parties are directed to appear before the Adjudicating Authority

on 02nd August, 2022.

Registry is directed to send a copy of this order to the concerned

Adjudicating Authority forthwith.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical)

[Dr. Alok Srivastava] Member (Technical) Sheetal/RR