S.V. Concrete Product Pvt. Ltd vs Advaitha Ventures Pvt. Ltd

S.V. Concrete Product Pvt. Ltd. ...Appellant Versus Advaitha Ventures Pvt. Ltd. ...Respondent

Present: For Appellant : Mr. Balaji Srinivasan and Mr. Siddhant Kohli, Advocates

ORDER

03.07.2019 Having heard learned counsel for the appellant and being

satisfied with the grounds, the delay of 8 days in preferring the appeal is

condoned.

I.A. No. 2043 of 2019 stands disposed of.

The Appellant preferred an application u/s 9 of the 'Insolvency and

Bankruptcy Code, 2016 (for short, 'the I&B Code') for initiation of 'Corporate

Insolvency Resolution Process' against M/s. Advaitha Ventures Pvt. Ltd., which

having rejected by the Adjudicating Authority (National Company Law Tribunal),

Bangalore Bench by order dated 12th April, 2019, the present appeal has been

preferred.

2. Learned counsel appearing on behalf of the Appellant submits that the

Respondent admitted the dues and issued cheques in favour of the Appellant.

However, they were bounced due to which case has been instituted against the

Directors of the Corporate Debtor. Further, according to the learned counsel for

the Appellant, the notice by the Respondent raising certain issues is an

afterthought which has been issued after bounced cheques.

3. It is submitted that the suit preferred by the 'Corporate Debtor' do not

relate to the present demand wherein the order of injunction was sought and

does not relate to the question.

4. From the record we find that the Appellant issued a Demand Notice u/s

8(1) of the I&B Code on 16th March, 2018 but much prior to the same the

'Corporate Debtor' issued a letter through a 'Law Firm' on 25th January, 2018

(Annexure G) with the 'Corporate Debtor' disputing the supplies made by the

Appellant in view of short supply and inferior quality of ready mix concrete. It

was alleged that there are certain fake invoices also raised by the Appellant. In

an application u/s 9 of the I&B Code, it is not open to the Adjudicating Authority

to decide whether the allegation is correct or the statement made by the

'Operational Creditor' is correct or not, which can be decided by the Court of

competent jurisdiction.

5. Admittedly, there is a 'pre-existing dispute' and the 'Corporate Debtor' had

intimated by lawyer's letter dated 25th January, 2018 that there is inferior quality

of ready mix concrete, which is much prior to the notice u/s 8(1) was issued, the

Adjudicating Authority rightly refused to entertain the application u/s 9 of the

I&B Code. We find no merit in this appeal. It is accordingly dismissed.

[Justice S.J. Mukhopadhaya] Chairperson

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

[ Kanthi Narahari ] Member (Technical) /ns/gc