M/S. R.G. Shaw & Sons Pvt. Ltd. & Anr vs M/S. Naviplast Traders Pvt. Ltd. & Ors

Company Appeal (AT) (Insolvency) No. 63 of 2017

(arising out of Order dated 12th April, 2017 passed by National Company Law Tribunal, Kolkata Bench, Kolkata in Company Petition No. 186/2017.)

- M/s. R.G. Shaw & Sons Private Limited & Anr. ellants V.

M/s. Naviplast Trader Limited & Ors. .... Respondent

Present:

Alok Dhir, Ms Varsha Milan Singh Negi and Mr Kunal w vocates.

DGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

This appeal has been preferred by Appellant ('corporate

debtor') & another against order dated 12th April, 2017 passed by

the Adjudicating Authority (National Company Law Tribunal),

Kolkata Bench, in Company Petition No. 186/2017. By the impugned order, the application preferred by Respondents

('financial creditor') under Section 7 of the Insolvency &

Bankruptcy Code, 2016 (hereinafter referred to as MB Code) has

been admitted, moratorium has been declared, Insolvency

Resolution Professional has been appointed and directions has

been issued to proceed in terms of the provisions of theI&B Code.

2. Before the Adjudicating Authority the Appellant ('corporate

debtor') took plea that the Respondent ('financial creditor') has not

come with clean hands and have

have initiated proceeding under Section 138 of the 'Negotiable

Instruments Act, 1881 on account of dishonor of cheque.

3. We have arties and perused the

order g Authority that proceeding

under Sec otiable Instruments Act was initiated

due to dishonor of cheque Ad the same cannot be a ground to reject the application under Section 7 of the MB Code, there being

debt and default. The Appellant while referring to letters, money

receipts, demand promissory note, other relevant documents,

including cheques have taken plea that they have been shown as

security towards loan amount paid on different dates as detailed

in the appeal. According to the Appellants, pursuant to oral

agreement between the parties, the loan amount has been taken

2 and there is no stipulation of any specific date of re-payment.

However, it is accepted that payment is due to the 'financial

creditor' and cheques presented by the Appellants were

dishonoured.

4. One of the plea taken by the Appellants is that pursuant to

oral understanding/ agreement between the parties, the terms for

repayment of the loan was to be renew

from 31.3.17 and therefore the

payment does not ax,

'agreement', no such plea c

1. Ld. Counsel of t hat Form 1 was

not in accordance with the provisions of Section 7 and. Rules

framed thereunder. But such submission cannot be accepted as

we find that application under Section 7 was filed by authorized

representative of financial creditor', namely, Mr Chinmoy

Guchhait, Director.

6. Next it was contended that particulars of security etc., were

to be given in Part V of Form No. 1, including order of court, if any,

but it has not been shown. However, such submission cannot be

accepted as the particulars as mentioned therein are not

applicable in the present case. For example, if no order has been

3 passed by any Tribunal or Arbitration Panel or any suit is pending,

the question of giving details of such case does not arise. The

'financial creditor' rightly mentioned the word 'not applicable'

against the relevant column.

7. As we find no illegality in the impugned order and the

application preferred by Respondents ('financial creditors) being

in order and complete, the question of interference with the

impugned order dated 12th April, 2017 does not arise. In absence

of any merit, the appeal is dismiss ever, e;acts and

circumstances of the case. t e shall beonrd border as to cost.

(Mr. 1ukhopadhaya) Mem irperson

NEW DELHI

20th September,

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