M/S Siddhi Enterprises vs M/S Oasis Buildmart (India) Pvt. Ltd

M/s Siddhi Enterprises ...Appellant

Versus

M/s Oasis Buildmart (India) Pvt. Ltd. ...Respondent

Present: For Appellant : Mr. Ritesh Agarwal and Mr. Teejas Bhatia, Advocates.

For Respondent : None.

ORDER

11.01.2023

I.A. No. 4955 of 2022

This is an Application for condonation of delay in refiling the Appeal.

Grounds taken in paragraphs 3 & 4 are that the Appellant examined all invoices.

The invoices marked defective were of the year 2018 and time was taken to verify

the invoices and Appellant was unorganised as the Office of the Appellant was

not functioning due to lockdown which caused a delay of 117 days in refiling

the Appeal. We find sufficient cause to condone the refiling delay.

2. This Appeal has been preferred against the order dated 01.09.2021

passed by the Adjudicating Authority (National Company Law Tribunal, New

Delhi) by which Application under Section 9 of IBC of the Appellant has been

dismissed on the ground that there was pre-existing dispute.

3. Demand Notice was issued on 12.04.2019. Adjudicating Authority noticed

in the order that prior to that the Corporate Debtor informed about the poor

quality of goods supplied. Hence there was pre-existing dispute.

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

the Invoices there was clear speculation that the complained must be made

within seven days. It is submitted that complaint was not made within seven

days when the invoices were issued which invoices were from the year 2017 to

2019, hence the defence was not entitled to be accepted.

5. We have heard the submissions of the Appellant and perused the records.

Adjudicating Authority in paragraphs 8 (d), (e) & (f) has noticed the defence of

the Corporate Debtor to the following facts:

"8. ..

d.) Furthermore on 19.03.2019, the corporate debtor

informed about the poor quality of the goods supplied at the site

and also requested to improve the quality of the materials

supplied to the applicant.

e.) Despite various remainders and requests on

04.04.2019 and 05.04.2019 vide email informed about the work

not being carried out at the site but the applicant neither discuss

nor receive any call of the corporate debtor.

f.) It is further stated that on 09.04.2019, the officials of

the corporate debtor again emailed the applicant informing that

as per the commitment work was to be stated on 07.04.2019 but

till 09.04.2019 no work had been started. Further on

Company Appeal(AT)(Insolvency) No. 15 of 2023, I.A. No. 4955 of 2022 & 41 of 2023 Page 2 of 3 15.04.2019, the corporate debtor again requested for the

completion of the supply of the goods at the site."

..

6. The submissions of the Counsel for the Appellant that in the invoices it

was mentioned, that the complaint must be made within seven days. The

invoices were of the year 2017 to 2019 and e-mail was sent on 19.03.2019 which

was prior to issuance of Demand Notice. The Demand Notice was issued on

12.04.2019 and prior to that Corporate Debtor had issued letters, as noticed by

the Adjudicating Authority, raising the dispute.

7. We are of the view that no error has been committed by the Adjudicating

Authority in rejecting Section 9 Application on the ground of pre-existing

dispute.

7. There is no merit in the present Appeal. The Appeal is dismissed.

(Justice Ashok Bhushan) Chairperson

(Mr. Barun Mitra) Member(Technical) akc/Nn

Company Appeal(AT)(Insolvency) No. 15 of 2023, I.A. No. 4955 of 2022 & 41 of 2023 Page 3 of 3