Sadhana Nitro Chem Limited vs Deepak Nitrite Limited

IN THE MATTER OF: Sadhana Nitro Chem Ltd. ...Appellant

Versus

Deepak Nitrite Ltd. ...Respondent

Present: For Appellant : Mr. Abhirup Das Gupta, Advocate

For Respondent : Mr. Akash Deep Gupta, Mr. Siddharth Chechani and Mr. Somdev Tiwari, Advocates

ORDER

(Hybrid Mode)

13.12.2024 This is an Appeal against the impugned order dated

20.04.2023. The Learned Counsel for the Appellant submits the Learned NCLT

ought not to have dismissed the Company Petition (IB) 1295(MB)/2020 and

rather should have continued with it giving an opportunity to the Appellant to

prove it did not owe any liability to the Respondent.

2. However we may refer to reply dated 18.10.2021 filed before the NCLT to

the petition filed under Section 9 filed by the Respondent herein and it read as

under:

"....

8. Finally, without prejudice to all of the above, and since the Respondent Company is a bona fide party and a responsible corporation, it is willing to deposit and/or provide security in respect of the entire principal claim of the Petitioner in any manner directed by this Hon'ble Tribunal. The Petitioner can then prefer appropriate proceedings before a civil forum to establish/prove its claim, which will be heavily resisted by the Respondent Company. It is made clear that this offer to deposit or provide solvent security with regard to the entire claim only to undermine the Petitioner's case that CIRP should be initiated against the Respondent Company. It is o manner whatsoever, constitutes an acknowledgement of liability on the part of the Respondent Company. The Respondent Company vehemently disputes any liability with regard to the Petitioner's claim and will contest the same in any recovery proceedings that the Petitioner may initiate. This Hon'ble Tribunal may accept the said deposit/security and direct the Petitioner to initiate appropriate proceedings before a civil court for recovery of its alleged claims within a specified time period, failing which the deposit / security would be returned to the Respondent Company."

3. Learned Counsel for the Appellant submits the Learned NCLT ought to

have acted upon para 8 of the Reply wherein the Appellant only offered to

deposit the said amount as a security to the alleged claim of the Respondent

and to further hear the Company Petition on merits to find out if the Appellant

actually had any liability towards the Respondent. However, we find on record

at page no. 84 of the Additional Affidavit filed by one Mr. Abhishek A. Javeri,

Managing Director of the Appellant herein which read as under:

"....

4. However, in order to ensure that the Respondent Company, for the following reasons, is not a company that could and can be put to the rigours of the Code, and be subjected to a CIRP process, the Respondent Company is ready and willing to pay an amount of Rs. 1,74,16,800/- being the amount claimed by the Petitioner Company in the present proceedings. However, the Respondent Company whilst making the payment of the said amount, reserves its right to take such steps and file such proceedings against the Petitioner Company, for the said amount, which in the Respondent Company's respectful submission, is not a bonafide claim made by the Petitioner. Further, the payment of the said amount, should not in any manner be construed to mean that the Respondent Company has admitted the claim of the Petitioner. The Respondent Company is paying the said amounts to the

Company Appeal (AT) (Ins.) No. 894 of 2023 2 of 5 Petitioner Company under protest; reserving such right of legal remedy and to ensure that the Company, who for the following reasons is not subjected to an order of admission and initiation of CIRP against it.

xxxx

6. Moreover, and strictly without prejudice to the above, it is respectfully submitted that there are serious disputes between the Petitioner and the Respondent Company as regards its alleged claim and therefore, the Respondent Company is ready to and without prejudice to its right to adopt such legal remedies in respect of the alleged claim made by the Petitioner in the present proceedings pay the amount of Rs.1,74,16,800/-, As a result, there is no question of their being justification for the commencement of CIRP against the Respondent Company.

7. Finally, without prejudice to all the rights and remedies available to the Respondent Company, and since the Respondent Company is a bona fide party and a responsible corporation, it is willing to pay the said amount of Rs. 1,74,16,800/-. It is made clear that this offer to pay the entire claim is only to undermine the Petitioner's case that CIRP should be initiated against the Respondent Company. It, in no manner whatsoever, constitutes an acknowledgment of liability on the part of the Respondent Company. The Respondent Company vehemently disputes any liability with regard to the Petitioner's claim and will prosecute the same in any recovery proceedings. I respectfully submit that the Respondent Company is a solvent and profitable company, the Petitioner's claims are heavily disputed.

8. In the circumstances aforesaid. I say that the Respondent Company be allowed to pay to the Petitioner Company the said amount of Rs.1,74,16,800/- however, with a liberty and a caveat that the said amount so paid, will not prejudice the rights of the Petitioner to adopt and/or contest any legal proceedings that the Respondent Company would be advised to adopt in respect of the said amount. The payment of the said amount is strictly not to construe to mean that the Respondent Company has in any manner admitted its liability in respect of the said claim of the Petitioner.

4. A bare perusal of para 8 of the Reply dated 18.10.2021 and paras 4, 6 to

8 of the Additional Affidavit would show the petitioner himself offered to pay Company Appeal (AT) (Ins.) No. 894 of 2023 3 of 5 the amount allegedly due to the Respondent though without prejudice to its

rights and contention to either contest the legal proceedings against the

Respondent and/or to challenge such alleged liability before an appropriate

legal forum.

5. The Leaned NCLT in its wisdom, after payment being made to the

Respondent herein, had dismissed the company petition giving liberty to the

Appellant to pursue its legal remedies. Moreso the amount so paid was only the

alleged principle amount and not towards interest due.

6. In this appal the Learned Counsel for the Appellant submits the

Respondent be directed to re-deposit the said amount before the Learned NCLT

and the Learned NCLT be directed to hear on merits the Company Petition. We

find no reason as to why we should pass such an order since the impugned

order dated 20.04.2023 was based of Additional Affidavit dated 14.03.2023 of

the appellants and also upon its offer to pay the entire amount to the

Respondent with liberty to the Appellant to challenge such alleged liability

before an appropriate forum to prove the respondent had unjustly enriched

itself by pocketing an amount of Rs. 1,74,16,800/-, towards principle allegedly

due. Now if the suit is filed by the Appellant, the Learned Civil Court may pass

orders as per law, including refund of the amount to the Appellant.

7. In view of the circumstances, where the impugned order was passed

upon an offer made by the Appellant itself, we find no reason to set it aside.

Company Appeal (AT) (Ins.) No. 894 of 2023 4 of 5 The Appeal thus stands dismissed. Pending applications, if any, are also

disposed of.

8. Appellant is at liberty to take action as per law to prove the amount paid

to the respondent was never allegedly due.

[Justice Yogesh Khanna] Member (Judicial)

[Ajai Das Mehrotra] Member (Technical)

[Mr. Arun Baroka] Member (Technical) pks/kam

Company Appeal (AT) (Ins.) No. 894 of 2023 5 of 5