Overseas Packaging Industries Pvt Ltd vs Sify Technologies Ltd

Overseas Packaging Industries Pvt. Ltd. ...Appellant

Vs.

Sify Technologies Ltd. ...Respondent

Present: For Appellant: - Ms. Garima Sharma, Advocate.

For Respondent: - Mr. Ankit Chaturvedi, Advocate.

O R D E R

17.05.2019─ The Appellant, who claimed to be 'Operational

Creditor' filed application under Section 9 of the 'Insolvency and

Bankruptcy Code, 2016' ("I&B Code' for short) which has been rejected

by the Adjudicating Authority (National Company Law Tribunal), Division

Bench, Chennai, on the ground of non-availability of evidence relating to

debt and default.

2. We have heard the learned counsel appearing for the parties and

perused the records.

3. Form 5, which is the application under Section 9 has been enclosed

by the Appellant, wherein 'particulars of operational debt', which includes

documents, records and evidence of default is to be shown, as stated by

the Appellant is as follows:

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4. From the aforesaid 'particulars of operation debt', we find that no

document or record or any evidence of default has been enclosed by the

Appellant, as the Appellant marked the columns as "not applicable" or

left the same blank.

5. Learned counsel for the Appellant relied on the other page to

suggest that there is evidence of default. Invoice dated 22nd January,

2018 at Page 36 raised by the Appellant has been enclosed, wherein the

name of the buyer has been shown as 'Perfect IT Solution'.

6. The aforesaid invoice has been taken into consideration by the

Adjudicating Authority to come to a definite conclusion that the buyer is

'Perfect IT Solution' as shown in the invoice and not 'Sify Technologies

Limited' (Respondent herein).

7. Learned counsel for the Appellant submitted that 'Perfect IT

Solution' is agent of 'Sify Technologies Limited', which the Respondent

has also admitted in their Demand Notice. However, such disputed

question cannot be decided either by the Adjudicating Authority or by

this Appellate Tribunal, as in the invoice the name of the buyer has been

shown as 'Perfect IT Solution' and not 'Sify Technologies Limited'.

8. There being a disputed question of fact, we are of the view that it is

a case which can be decided by a Court of Competent Jurisdiction, hence

the application under Section 9 is not maintainable.

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9. The appeal is dismissed. However, the order passed by the

Adjudicating Authority or this Appellate Tribunal will not come in the way

of the Appellant to move before a Court of Competent Jurisdiction for

appropriate relief.

(Justice S.J. Mukhopadhaya) Chairperson

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

(Kanthi Narahari) Member(Technical) Ar/g

Company Appeal (AT) (Insolvency) No. 240 of 2019