Poonam Gupta vs Suman Chadha & Anr

Ms. Poonam Gupta, 62-C, SFS MIG, DDA Flats Motia Khan, Paharganj, New Delhi- 110 055 .. Appellant

Vs.

1. Smt. Suman Chadha, R/o 1071, Third Floor, Rani Bagh New Delhi- 110 034

2. Lifestyle Fitness Pvt. Ltd. 62-C, SFS MIG, DDA Flats Motia Khan, Paharganj, New Delhi- 110 055 .. Respondents

Present:

For Appellant: Mr. Gautam Bajaj, Advocate

For Respondents: Mr. Neeraj Yadav, Mr. Sidharth Arora, Ms. Aditi Sharma, Advocates for Respondent No. 1

Company Appeal(AT)(Insolvency) No. 771 of 2019 Page 1 of 7 JUDGMENT

(26th November, 2019)

KANTHI NARAHARI, MEMBER(TECHNICAL)

The present appeal is filed by the Appellant/shareholder of

and for M/s Lifestyle Fitness Private Limited (Corporate Debtor)

(hereinafter referred as Appellant) aggrieved by the order dated 14th

June, 2019 whereby the Adjudicating Authority (National Company

Law Tribunal) New Delhi Bench-III, New Delhi admitted the

application filed by the Respondent No. 1 (Operational Creditor).

2. Respondent No. 1 filed application before the Adjudicating

Authority (National Company Law Tribunal), New Delhi Bench-III,

New Delhi under Section 9 of Insolvency and Bankruptcy Code,

2016 (In short 'IBC') seeking triggering Corporate Insolvency

Resolution Process (in short 'CIRP') against the Corporate Debtor

i.e. M/s Lifestyle Fitness Private Limited on the ground that the

Corporate Debtor defaulted payment of dues.

3. The learned Counsel for the Appellant submitted that the

Appellant runs and operates Fitness Centre and had availed

counselling and other professional services in the year 2016-17 from

the 1st Respondent against a consideration of Rs. 35,00,000/-. It is

stated that the Appellant had issued various cheques from time to

time in the years 2017-2018 towards the discharge of the amount

due and payable to the 1st Respondent.

Company Appeal(AT)(Insolvency) No. 771 of 2019 Page 2 of 7

4. Learned Counsel for the 1st Respondent submitted that the

Appellant failed pay the dues and issued Demand Notice dated

03.12.2018 demanding an amount of Rs. 26,85,907/- and interest

thereon and the total due is Rs. 26,95,907/-. The Appellant failed to

pay and clear the dues. Hence the above Demand Notice got issued

on the Corporate Debtor. The Appellant in their reply dated

17.12.2018 denied the claim of the debt due to the

Respondent/Operational Creditor.

5. Heard learned Counsel for the respective parties, perused the

pleadings and documents in its support.

6. The learned Adjudicating Authority was of the view that the

Corporate Debtor was unable to give satisfactory evidence in relation

to any pending dispute or the claim. Taking the aforesaid view, the

Adjudicating Authority admitted the application.

7. The main ground taken by the Appellant in this appeal is that

they have paid the amount of Rs. 25 lakhs to one Mr. Ritesh Vijhani,

the authorized representative of the 1st Respondent and therefore

there are no dues or default.

8. After going through the documents, we are of the view that the

bone of contention is with regard to alleged payment of Rs. 25 lakhs

Company Appeal(AT)(Insolvency) No. 771 of 2019 Page 3 of 7 in cash to Mr. Ritesh Vijhani said to be authorized representative of

the 1st Respondent (Operational Creditor) by the Appellant for

Corporate Debtor herein. It is admitted that the Appellant issued

cheques in the name of 1st Respondent dated 30.04.2017,

30.06.2017 and 31.07.2017. However, the stand of the 1st

Respondent (Operational Creditor) is that those cheques have been

dishonored with the remarks "funds insufficient". The Respondent

No. 1 issued notice dated 15.10.2018 under Section 138 of

Negotiable Instruments Act, 1881 on the Appellant. Having not

received the dues from the Appellant, the 1st Respondent got issued

Demand Notice dated 03.12.2018 under Section 8(1) of IBC claiming

an amount of Rs. 26,85,907/- taking a stand that the Appellant

failed to clear the entire payment. The Appellant in their reply dated

17.12.2018 have stated that when notice dated 15.10.2018 was

received demanding Rs. 26,85,907/-, the Appellant paid Rs. 25

Lakhs in cash to Shri Ritesh Vijhani on 27.10.2018 who is the

authorized Representative of 1st Respondent and said Ritesh Vijhani

has acknowledged the receipt of Rs. 25 lakhs. It is also stated that

the balance Rs. 1 lakh will be paid at the time of returning all the

cheques which were in possession of the 1st Respondent. The

Appellant relied upon a receipt dated 27.10.2019 (page 138 of the

paper book) is re-produced,

Company Appeal(AT)(Insolvency) No. 771 of 2019 Page 4 of 7 "

"

It reads: - "Received 25 lakhs on behalf of Suman Chadhaji".

The document claims receipt of 25 lakhs on behalf of 1st

Respondent- herein Operational Creditor, namely Smt. Suman

Chadha. The said stand was taken before and the Adjudicating

Authority and at paragraph-9 of the impugned order Adjudicating

Authority was of the view that receiving note dated 27.10.2018 has

been signed by someone without identifying himself which it is

alleged by the Corporate Debtor, to have been made on behalf of the

Operational Creditor for an amount of Rs. 25 lakhs which is

vehemently disputed by the Operation Creditor. In fact, we note that

it does not even state 25 lakhs "Rupees" or what is received. We are

also of the view that even if it is treated as amount to be received on

behalf of Suman Chadha the 1st Respondent herein, but person who

actually received the amount and signed beneath could not be

identified. Appellant wants us to compare signatures in this regard

but in the summary jurisdiction of Adjudicating Authority it may not

be possible.

Company Appeal(AT)(Insolvency) No. 771 of 2019 Page 5 of 7

9. Learned Counsel for the Appellant stressed upon this

Tribunal on the payment of Rs. 25 lakhs in "cash" to one Shri Ritesh

Vijhani and contended that the said Shri Ritesh Vijhani was an

authorized representative of the Operational Creditor. Neither the

Adjudicating Authority nor this Appellate Tribunal will go into the

veracity and authenticity of such document since the proceedings

before the Adjudicating Authority are summary in nature and

cannot adjudicate upon seriously disputed documents which need

to examine the persons involved to be cross-examined in a regular

trial before competent Court of Jurisdiction and if necessary, the

documents need to be sent to Forensic Department for its

genuineness. Even otherwise, Income Tax Act does not appear to be

recognizing such cash payment. Therefore, the said contention of

the Appellant that they have paid a sum of Rs. 25 Lakhs on

27.10.2018 to an authorized representative of the Operational

Creditor- 1st Respondent herein, we refuse to accept. On the other

hand, we are of the view that there is no existence of dispute prior

to the issuance of Demand Notice dated 03.12.2018 with regard to

dues payable to the 1st Respondent. As stated supra, the Appellant/

Corporate Debtor had availed the services of Respondent No. 1-

Operational Creditor and in pursuance of the same, the Appellant

issued cheques to 1st Respondent and in one of the letters of the

Appellant (annexed at page-90 of the Paper Book), it is clearly

mentioned that they have issued cheques for Rs. 3 lakhs to be

deposited on 31.03.2018. The dispute must be bonafide dispute as

Company Appeal(AT)(Insolvency) No. 771 of 2019 Page 6 of 7 held by the Hon'ble Apex Court and this Tribunal in various

judgments. The payment of huge cash, which is impermissible, that

too, to a third party and trying to adjust the payments due to the

Operational Creditor i.e. 1st Respondent herein cannot be

recognized.

10. We are of the view that the said dispute is not a bonafide

dispute and therefore the Adjudicating Authority has rightly

admitted the application. Apart from above, even if Rs. 25 lakhs is

held to be paid was to be accepted, admittedly Corporate Debtor held

back Rs. 1 lakh. If the default is Rs. 1 lakh, the insolvency can be

triggered against the Corporate Debtor as per Section 4 of IBC. The

Appellant in grounds of appeal has stated that the balance of Rs. 1

lakh was withheld by the Appellant. Thus the default is admitted.

11. In view of the reasons aforesaid, we do not find any reason to

interfere with the order passed by the learned Adjudicating

Authority. The Appeal stands dismissed. No orders as to cost.

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

(Kanthi Narahari) Member(Technical)

(V P Singh) Member(Technical) Akc

Company Appeal(AT)(Insolvency) No. 771 of 2019 Page 7 of 7