Sameer Gulati vs Salasar Techno Engineering Ltd

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal(AT) (Insolvency) No. 1435 of 2019 IN THE MATTER OF: Sameer Gulati ...Appellant Vs Salasar Techno Engineering Limited ....Respondent Present: For Appellant: Mr. Ratan K. Singh, Mr. Rajeev Gurung, Mr. Fanish Kr. Rai, Mr. Manoj Jumar, Advocates and Mr. Sameer Gulati Appellant in person. For Respondent: Mr. Ajay Garg, Ms. Akansha Meena, Advocates and Mr. Manish Agarwar, in person

Mr. Anuragh Bhatt and Mr. Lokesh Pathak, Advocates for RP.

ORDER

30.01.2020 Heard learned Counsel for the Appellant- Ex- Director of

Corporate Debtor who has filed this Appeal against the impugned Order dated

03.12.2019 passed by Adjudicating Authority (National Company Law Tribunal,

New Delhi, Bench-VI). The Application under Section 9 of Insolvency and

Bankruptcy Code, 2016 (in short 'IBC') was filed by the Respondent- Operational

Creditor- Salasar Techno Engineering Limited against Netsoft Consulting

Services Private Limited- Corporate Debtor. As the Application came to be

admitted against the Corporate Debtor, this Appeal has been filed by the Ex-

Director of the Corporate Debtor. We have heard Counsel for the parties.

2. The Application was filed by the Operational Creditor claiming that the

Corporate Debtor had issued Purchase Order dated 12.06.2018 (page-63) in

favour of the Operational Creditor to supply and install certain Telecom Towers

of peculiar specifications. The order was for 28 Towers. The Purchase Order

stipulated that the Corporate Debtor would make 15% payment in advance and

Company Appeal(AT)(Insolvency) No. 1435 of 2019 Page 1 of 5 rest of the payment shall be released, after adjusting advance, as per work

completion of all sites. It was claimed that Corporate Debtor never raised dispute

regarding quality and quantity. The Operation Creditor could not install a

Telecom Tower at a particular site as the work was stopped by the Corporate

Debtor due to certain issues raised by the local residents and authorities of the

area which was beyond the control of the Corporate Debtor. It is claimed that in

spite of various requests and reminders, the Corporate Debtor did not pay the

outstanding amount of Rs. 16,02,500/- and Notice under Section 8 of IBC was

sent on 07.05.2019. Operational Creditor claimed in Application that in response

to Notice, Corporate Debtor paid Rs. 7,37,500/- on 20.05.2019 and Rs.

1,27,500/- on 06.06.2019 and thus Application under Section 9 of IBC was

required to be filed.

3. It is stated that the Corporate Debtor sent reply (Annexure-A7) on

20.05.2019 stating that the payment outstanding is of two Towers and they had

made payment of one Tower via RTGS and the other Tower was not yet

completed. Thus it was stated that 24th Tower was yet not complete.

4. The Adjudicating Authority heard both the parties and came to a

conclusion that there was no pre-existing dispute and there was debt and default

and thus admitted the Application under Section 9 of IBC.

5. Learned Counsel for the Appellant is submitting that although order was

placed for 28 Towers and 15% interest was paid, later on requirement was

reduced to 24 Towers and that 15% of the payment made was adjusted from the

dues of 23 Towers. Learned Counsel stated that clearly 24th Tower was yet not

constructed. There is no dispute that 23 Towers were constructed and one Tower

Company Appeal(AT)(Insolvency) No. 1435 of 2019 Page 2 of 5 was put on hold due to issues raised by the local authorities. The argument for

the learned Counsel for the Respondent- Operational Creditor is that in view of

the Purchase Order, the Operational Creditor had invested money for erection of

28 Towers, which by e-mail was later on reduced to 24 Towers.

6. Learned Counsel for the Appellant stated that the Operational Creditor

referred to his reply (Diary No. 17563) and Annexures-R2 & R3 were filed to show

that the Corporate Debtor had confirmed the outstanding due on 31.12.2018

and that the Operational Creditor had to recover money which was confirmed by

the Corporate Debtor.

7. Learned Counsel for the Appellant is relying on e-mail dated 26.04.2019

sent by the Corporate Debtor to the Operational Creditor. The same is part of

different e-mails exchanged and the same is at Annexure-I/1 (Page-138). The e-

mail reads as under:

...

"From: Ajit Kumar [Mailto:ajit.kumar@netsoftit.com]

Sent: Friday, April 26, 2019 3:19 PM

To: 'Amit Rathore'

Cc: 'Manish Agarwal'; 'Yatish Agarwal'; 'rajesh verma';

'Sagar Parashar'; Sushil Grover

Subject: RE: Request for release of overdue payment of

Rs. 26,02,500/-

Dear Sir,

As per our accounts balance INR 8,65,000/- (23 towers)

24th which is on hold, so kindly acknowledge the same."

...

Company Appeal(AT)(Insolvency) No. 1435 of 2019 Page 3 of 5

8. This is the only document pointed out by the Corporate Debtor to say that

there is pre-existing dispute. Going through the e-mail, which we have

reproduced above, we do not find that it spells out anything about dispute as

such required to be taken note under the provisions of IBC. 24th Tower was put

on hold due to local problem is a fact between the parties. It was not dispute

between them.

9. Learned Counsel for the Appellant states he is ready with the draft/cheque

to pay the whole amount claimed under Section 9 of IBC without prejudice to

the contentions raised by the Appellant.

10. Going through the e-mail pointed out to us and record as well as the

Impugned Order, on merit, we do not find that we have any scope to interfere

with the Impugned order by which Application under Section 9 had been

admitted.

11. We take note of the amount involved and submission made by the learned

Counsel for the Appellant that the Appellant is ready to pay the dues. The learned

Counsel for Interim Resolution Professional (in short IRP) states that the IRP has

received only one claim from the Financial Creditor-RBI Bank and the Bank has

also told him that the Account of the Corporate Debtor is not an NPA and that

the account is regular.

12. Learned Counsel for the IRP states that there are two claims of Operational

Creditors and one of them is present Operational Creditor. As Committee of

Creditors has already been constituted, our scope for interference gets limited

Company Appeal(AT)(Insolvency) No. 1435 of 2019 Page 4 of 5 and we have to leave the parties to resort to Section 12A of IBC. We do hope that

the parties will settle their dispute.

13. For the reasons recorded earlier, we dispose of the Appeal without

interfering with the Impugned Order. The IRP may process the matter under

Section 12-A of IBC, in case the Corporate Debtor moves as per Regulations in

that regard.

Appeal is disposed of as above. No costs.

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

[Justice Anant Bijay Singh] Member (Judicial)

(Kanthi Narahari) Member(Technical) Akc/Md

Company Appeal(AT)(Insolvency) No. 1435 of 2019 Page 5 of 5