S N Engineers vs Vedant Dyestuffs Intermediates ...

S N Engineers ...Appellant

Versus

Vedant Dyestuffs Intermediates Pvt. Ltd. ...Respondents

Present: For Appellant: Ms. Ruchi Thakur, Advocate. For Respondents: Mr. Moazzam Khan and Ms. Anvita Goel, Advocates.

ORDER

05.01.2023: Heard learned counsel for the Appellant as well as learned

counsel appearing for the Respondent.

2. This Appeal has been filed against order dated 14.10.2022 by which

order the Adjudicating Authority has rejected Section 9 application filed by the

Appellant. The Adjudicating Authority heard the parties and returned its

findings in Para 8 of the order, which are to the following effect:

"8. To examine this issue, the following facts are relevant. There were two types of invoices issued by the Operational Creditor in the course of their business, Tax Invoices and Proforma Invoices. The general practice between the parties was that such Proforma invoice/Quotations/Estimates for certain work were issued by the Operational Creditor post which the scope of work was examined and Purchase Orders for specific work were issued by the Corporate Debtor. The work was then performed based on these 2

Purchase Orders and Tax Invoices were raised by the Operational Creditor only for the work so done. It is noted that the Corporate Debtor has regularly made payments on the Tax Invoices so raised and even admits that a balance payment of Rs.5,10,482/- remains due on the Tax Invoices duly raised by the Operational Creditor and undertakes to clear the same immediately."

3. Aggrieved by the order of the Adjudicating Authority, the Operational

Creditor has come up in this Appeal.

4. Learned counsel for the Appellant submits that in fact the Appellant had

performed more work and certain other work measurement was submitted but

no purchase order was issued by the Corporate Debtor. It is further submitted

that Appellant is entitled for more amount to be paid by the Corporate Debtor

except the amount of Rs.5,10,482/- as noticed in the order of the Adjudicating

Authority in Para 8. It is submitted that present is a case where there is no

pre-existing dispute between the parties, hence, the application was not to be

rejected.

5. Learned counsel for the Respondent submits that insofar as Tax

Invoices are concerned which were placed before the Adjudicating Authority,

the entire amount was paid except the amount of Rs.5,10,482/-, which is also

the finding recorded by the Adjudicating Authority.

6. We have considered the submissions of learned counsel for the parties

and perused the record.

Company Appeal (AT) (Insolvency) No. 1456 of 2022 3

7. The grievance raised in the Appeal is that the Appellant is entitled for

some more amount than the one which was paid by the Corporate Debtor. It

is submitted that certain other work was also done for which measurement

was submitted but no purchase orders were issued or payments were made.

We are of the view that the issues which are sought to be raise in this Appeal

are the issues which cannot be decided in a Section 9 proceeding. The

Adjudicating Authority having found that the entire payment was made except

the amount of Rs.5,10,482/-, which was undertaken to be paid immediately

by the Corporate Debtor, we see no reason for admitting the Section 9

application.

8. In view of what has been noticed in para 8 of the impugned order, we

direct the Corporate Debtor to make payment of Rs.5,10,482/- by way of a

bank draft within one week to the Operational Creditor. Insofar as other

claims of the Appellant, as raised before us, it is always open for the Appellant

to seek remedy in accordance with law. With these observations, Appeal is

disposed of.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 1456 of 2022