Rungta Business P Ltd vs Shradha Agencies Pvt.Ltd

IN THE MATTER OF: Rungta Business Pvt. Ltd. ...Appellant

Versus Shradha Agencies Pvt. Ltd. ...Respondent

Present: For Appellant: Mr. Susheel Cyriac Joseph, Ms. Aprajita Rao, Mr. Sanwal tibrewal, Mr. Ankur S Kulkari and Nirnimesh Dube, Advocates For Respondent: Sonal Anand and Mr. Aaysuh Sai, Advocates

ORDER

(Virtual Mode)

19.07.2022: This appeal is directed against the order dated

26.11.2019 passed by the Adjudicating Authority (National Company Law

Tribunal, Kolkata Bench, Kolkata) in CP (IB) No. 991/KB/2019 by which an

application filed under Section 7 of the Insolvency and Bankruptcy Code,

2016 (in short 'Code') read with Rule 4 of the Insolvency and Bankruptcy

(Application to Adjudicating Authority) Rules, 2016 (in short 'Rules') has

been dismissed, inter alia, on the ground that the Appellant has failed to

prove that the money was advanced as corporate deposit carrying interest

and that the application suffers from the vice of collusion.

At the outset, Counsel for the Appellant has submitted that the

Appellant has discovered a money receipt dated 16.08.2017, after the

impugned order was passed, which is duly signed by the Director of the

Respondent Company in which the disputed amount has been shown as

loan against interest @ 12% per annum. It is also submitted that there was no collusion between the parties and this impression has been taken by the

Adjudicating Authority only on the ground that the Respondent had once

appeared before it on 05.09.2019 and then stopped appearing and did not

file the Reply as well.

After notice, Counsel for the Respondent has appeared and

vehemently opposed the present appeal and argued that there was no

collusion between the parties. It is argued that the amount in question do

not fall within the perview of debt for which an application under Section 7

of the Code has been filed. It is also submitted that the money receipt dated

16.08.2017 (Annexure-7) cannot be relied upon and the director who had

allegedly signed the said receipt is no more. However, he has not denied that

the amount of Rs. 25 lakhs was transferred from the account of the

Appellant to the account of the Respondent but it is alleged that the said

amount was not loan which would transform into debt for the purpose of

maintaining the application filed under Section 7 of the Code.

Be that as it may, the fact remains that there was no collusion

between the parties to the lis and the Adjudicating Authority had gathered

this impression from the fact that the Respondent did not file the Reply to

the demand notice as well as to the application filed under Section 7 of the

Code and observed as under:-

"If such an application is permitted to be filed or allowed there would be so many suicidal attempts by the Corporate Debtor in collusion with each other".

In such circumstances, once we are holding that there is no collusion

in this case between the parties to the lis as the appeal has been contested tooth and nail, therefore, aforesaid finding does not survive and hence, the

matter deserves to be remanded back to the Adjudicating Authority to

decide it afresh after receiving a reply and completing pleadings, allowing

the parties to file whatever evidence they want to place on record and then

take a decision as to whether the application deserves to be admitted or not.

In view of the observation made above, the present appeal is hereby

allowed. The Order dated 26.11.2019 is set aside. The matter is remanded

back to the Adjudicating Authority. The Parties are directed to appear before

the Adjudicating Authority on 04th August, 2022. The Adjudicating

Authority is directed to allow the Respondent to file their reply to the

application filed under Section 7 of the Code. The Appellant shall have a

right to file their Rejoinder to the Reply filed by the Respondent and on the

completion of the pleadings the application filed under Section 7 of the Code

shall be decided by the Adjudicating Authority in accordance with law.

The Registry is directed to send a copy of this order to the concerned

Adjudicating Authority forthwith for compliance.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical)

[Dr. Alok Srivastava] Member (Technical)

Sheetal/RR