Narinder Kumar Garg vs Bhagwati Kripa Paper Mills Pvt. Ltd. & ...

Bhagwati Kripa Paper Mills Pvt. Ltd. & Anr. ...Respondents

Present: For Appellant : Mr. Rakesh Kumar, Mr. Sahil Gupta and Mr. Mastram Chachi, Advocates

For Respondent: Mr. Sahil Narang, Advocate ORDER

09.01.2019 This appeal has been preferred by the appellant - shareholder

of 'A.P. Enterprises Private Limited' (Corporate Debtor) against order dated 13th

November, 2018 passed by the Adjudicating Authority (National Company Law

Tribunal), Chandigarh Bench, Chandigarh whereby application under Section 9

of the Insolvency and Bankruptcy Code (for short, the 'I&B Code') by respondent

'Bhagwati Kripa Paper Mills' (Operational Creditor) has been admitted, order of

moratorium has been passed and the 'Resolution Professional' has been

appointed. The learned counsel appearing on behalf of the appellant submits

that all the claim as made by the 'Operational Creditor' stands paid and there

was no amount due and payable to the 'Operational Creditor'. Therefore,

according to him there is no 'debt' payable in fact and, therefore, the question of

'default' does not arise.

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Mr. Sahil Narang, learned counsel appearing on behalf of the 'Operational

Creditor' submits that there is 'pre-existence of dispute and in spite of reminders

given by e-mail dated 27.02.2018 the amount due was not paid. In reply, learned

counsel for the appellant relied on a 'comparison ledger account' prepared by the

appellant to show that the total amount has been paid. However, learned

counsel for the 'Operational Creditor' submits that the said 'comparison ledger

account' has been prepared by the appellant and from record it shows that the

'corporate debtor' has not disputed the 'debt'.

Form 5, which is the application under Section 9 as filled up by the

'operational creditor' is on record. Part IV shows particulars of the 'operational

debt' to the extent of Rs.4,4885,364/- outstanding on 23rd March, 2018. The

details of transactions of account of which debt fell due and the dates from which

such debt fell due has been enclosed. The last invoice receipt was raised on 8th

November, 2017. In view of the mounting liability on 'A.P. Enterprises,

(Corporate Debtor), Bhagwati Paper (Operational Creditor) regularly followed up

with the 'Corporate Debtor' and by e-mail dated 1st January, 2018, the A.P.

Enterprises (Corporate Debtor) was provided 'reconciled statement of accounts'

to 'Bhagwati Paper. In response to the same vide e-mail dated 5th January, 2018

'Bhagwati Paper' provided its comments on the 'statement of accounts' as

provided by 'A.P. Enterprises' but there is no dispute raised of outstanding dues.

By e-mail dated 9th February, 2018 'Bhagwati paper' provided the 'reconciled

outstanding amount payable by 'A.P. Enterprises' and it followed by reminders

of e-mails made on 27th February and 28th February, 2018 etc. The A.P.

Enterprises did not comply with the same. The outstanding dues is also evident

from the detailed chart with the details of the cheques dishonoured by the A.P.

Company Appeal (AT) (Insolvency) No. 765 of 2018 3

Enterprises as on 9th February, 2018, which was enclosed and marked as

Annexure G to the Form 5. The cheque issued by the 'corporate debtor' on 9th

February, 2018 shows that the 'comparison chart' by the appellant is merely an

eyewash to mislead that there was no 'debt' payable. It is not clear as to why

the 'corporate debtor' issued cheques if there was no 'debt'. The bank receipt of

Rs. 8 Lakhs was shown on 9th February, 2018 and the bank receipt for Rs. Five

Lakhs on 23rd February, 2018. The other cheques were dishonoured. In view of

such facts, we do not accept the stand taken by the appellant-shareholder that

there was no 'debt' due and payable. We accordingly dismiss the appeal. No

cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/gc/

Company Appeal (AT) (Insolvency) No. 765 of 2018