Naveen Kumar Dixit vs Jaswant International Pvt. Ltd. & Anr

[Arising out of Order dated 31.01.2019 passed by National Company Law Tribunal, New Delhi in Company Petition No. IB-1060/ND/2018]

IN THE MATTER OF: Before NCLT Before NCLAT

Mr. Naveen Kumar Dixit ..... Appellant Shareholder of M/s. Callina Care Overseas Private Limited, R/o. Flat No.1204, Ruby-1, Gardenia Glamour Society, Sector - 3, Vasundhra, Ghaziabad - 201 012

Versus

1. M/s. Jaswant Applicant/ Respondent No.1 International Private Operational Creditor Limited, 11/5B. First Floor, Pusa Road, New Delhi - 110005

2. M/s. Callina Care Respondent/ Respondent No.2 Overseas Private Limited, Corporate Debtor Through the Interim Resolution Professional, Mr. Piyush Moona, A-16/18, Site -IV, Industrial Area, Sahibabad, Ghaziabad, U.P. 2

For Appellant: Shri Ramji Srinivasan, Senior Advocate with Shri Rahul Jain, Ms. Smitakshi Talukdar and Ms. Sylona Mohapatra, Advocates

For Respondents: Shri Abhishek Anand and Shri Anant A. Pavgi, Advocates (Respondent No.1)

Shri Anshul Gupta and Shri Piyush Moona, Advocates (Respondent No.2)

JUDGEMENT

A.I.S. Cheema, J. :

1. This Appeal has been filed by shareholder of Respondent No.2 -

M/s. Callina Care Overseas Private Limited (Corporate Debtor) against

the Order of admission of Application under Section 9 of the Insolvency

and Bankruptcy Code, 2016 (IBC - in short), which was filed by

Respondent No.1 - M/s. Jaswant International Private Limited

(Operational Creditor) before the Adjudicating Authority (National

Company Law Tribunal, New Delhi - Court No. IV). The Adjudicating

Authority by Order dated 31st January, 2019 admitted the application

and passed consequential orders.

2. The Operational Creditor claimed that it is engaged in the

business of manufacturing multi-layer plastic films and supplied the

same to the Corporate Debtor. Invoices had been raised and debt due

and payable by the Corporate Debtor was of Rs.40,41,763/- which

included interest. Operational Creditor claimed that in spite of

reminders, the debt was not cleared and Notice dated 29th May, 2018

under Section 8 of IBC was sent to the Corporate Debtor. According to

Company Appeal (AT) (INS) No.164 of 2019 3

the Operational Creditor, the Corporate Debtor thereafter on 30th June,

2018 claimed for the first time that it had received a complaint from one

of its clients "Arazplast" regarding quality of the material and that

Arazplast had deducted USD 80,000 from the dues of Corporate Debtor.

3. The learned Adjudicating Authority considered that the Corporate

Debtor had not appeared before it although proof of service had been

filed. The Adjudicating Authority considered the Application under

Section 9 of IBC and finding the same to be complete, proceeded to admit

the same and consequential Orders were passed initiating the CIRP

process.

4. Against the Impugned Order, present Appeal has been filed by the

Appellant. The Appellant claims that the Operational Creditor was to

supply plastic film of thickness of 12 microns but supplied film having

density of 18 microns because of which, its client - Arazplast imposed

penalty on the Corporate Debtor of USD 80,000 and the amount was

deducted from the bill of Respondent No.2 (Corporate Debtor). The

Appellant has pointed out that letter at Annexure - A3. The letter

appears to be dated 15.08.2016. The Appeal claims that this issue was

intimated by Respondent No.2 to Respondent No.1. The Appellant also

relies on letter dated 20.11.2017 said to have been sent by the said

Arazplast (Annexure A-4), by which Arazplast discontinued business

with Respondent No.2 (Corporate Debtor). The Appellant claims that on

receipt of such letter dated 20.11.2017 from Arazplast, it sent a letter

Company Appeal (AT) (INS) No.164 of 2019 4

dated 23rd December, 2017 (Annexure A-5) to the Operational Creditor

(Respondent No.1) and thus, the Appeal claims that there was a pre-

existing dispute. The Notice under Section 8 dated 29th May, 2018 is at

Annexure - A-6 and it is stated that the Appellant had responded to the

Notice by its letter dated 28.06.2018 (Annexure A-7) (which appears to

be copy of the letter at Annexure - A5 said to have been sent on 23rd

December, 2017).

5. The Respondent No.1 - Operational Creditor has in Reply Affidavit

(Para - 7), clearly denied that the Corporate Debtor has sent letter dated

23rd December, 2017 informing that there was defective material. The

Respondent No.1 has claimed that no evidence has been placed on

record that any such letter was ever sent and delivered to the

Operational Creditor. The Respondent No.1 claimed that such document

has been fabricated.

6. Although the Appellant claims that the Adjudicating Authority did

not give Appellant a hearing, the Impugned Order shows that the

Adjudicating Authority had proof of service on the Corporate Debtor. We

have heard the Appellant to see if remitting back the matter would serve

any purpose. Although the Appellant claims existence of a dispute and

the Appeal claims that a letter like Annexure - A5 dated 23rd December,

2017 was sent to the Operational Creditor, there is no proof of service of

such letter filed on record. The plea is thus unsupported by evidence.

When the Operational Creditor has in Reply Affidavit denied receipt of

Company Appeal (AT) (INS) No.164 of 2019 5

any such letter, the Appellant is unable to show pre-existing dispute. In

the circumstances, remitting back the matter would not serve any

purpose and the learned Adjudicating Authority having found the

Application complete and having admitted the Application under Section

9, the Impugned Order calls for no interference on our part.

7. For reasons mentioned above, there is no substance in the Appeal.

The Appeal is rejected.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical) New Delhi

8th May, 2019

rs/sk

Company Appeal (AT) (INS) No.164 of 2019