Sherbahadur D. Yadav vs Rohan Dyes And Intermediates Limited

IN THE MATTER OF: Sherbahadur D.Yadav ...Appellant Vs. M/s. Rohan Dyes and Intermediates Ltd. ...Respondent

Present: For Appellant: Mr. Sandeep Bajaj, Mr. Asav Rajan, Advocates For Respondent: Ms. Noopur K.Dalal, Advocate

ORDER

(Through Virtual Mode)

13.01.2022: Heard Learned Counsel for the Appellant.

This Appeal has been filed against the judgement and order

dated 13.05.2021 of the Adjudicating Authority by which

application u/s 9 of the Code filed by the Appellant has been

rejected on the ground of 'pre-existing' dispute.

2. The Appellant's case is that he was awarded a fabrication

work by the 'Corporate Debtor' in the year 2017-2018 and

pursuant to such work invoices totalling Rs. 32,10,781.50/- was

issued and legal notice was issued on 17.03.2018 by the Appellant

and the Appellant also filed a criminal complaint against the

'Corporate Debtor' on 02.04.2018 at Vatva Police Station,

Company Appeal (AT) (Ins) No. 472 of 2021 1 Ahmedabad, Gujarat for criminal breach of trust, cheating and

criminal intimidation under the 'Indian Penal Code'.

3. It is further submitted that Respondent also filed a police

complaint on 11.12.2018. Demand Notice was issued u/s 8 and

thereafter on 31.07.2019. An application was filed for non-

payment of 'operational debt' amounting to Rs, 17,83,642/- which

has been rejected by the Adjudicating Authority.

4. Learned Counsel for the Appellant submits that the police

complaint which was filed on 11.12.2018 and 28.08.2019 at Vatva

Police Station and on 20.08.2019 at Khambat Police Station

cannot be relied for raising a pre-existing dispute so as to place

reliance on, by the Adjudicating Authority. It is submitted that

only part payment of invoices were made and when the payments

were not made, the Appellant filed a police complaint complaining

hob-payments and making allegations of criminal breach of trust,

cheating and intimidation.

5. Learned Counsel for the Appellant has referred to all the three

police complaints which have been filed before us.

6. We have considered the submissions of the Learned Counsel

for the Appellant and perused the records.

Company Appeal (AT) (Ins) No. 472 of 2021 2

7. The Adjudicating Authority has observed the fact that the

police complaints were registered by the Appellant and cross-

complaints were also registered by the 'Corporate Debtor' is an

evidence of facts, that dispute has arisen between the parties

which was pending investigation by the police. In the complaint

which was filed by the 'Corporate Debtor' in the Police Station at

Vatva which has been brought on record by the Appellant at pages

248-249 in paragraphs 4, 5 and 6, the following allegations were

made:-

"4. On our repetitive demand for

invoices, we were issued with wrong

GST invoices amounting to Rs.

32,10,781/- without any detailed

particulars. The said amount was

inclusive of sham charges against the

work undertaken by other contractors.

5. The respondents inequitably

started claiming payment for the work

undertaken by the laborers of our

factory in daily course of business. On

putting forth such argument with the Company Appeal (AT) (Ins) No. 472 of 2021 3 respondents, we were told in a fit of

rage that no such invoices except for

the one previously issued will be

provided against the work undertaken.

Moreover, we were threatened to make

such absurd payment lest be faced

with dire consequences apropos false

civil proceedings.

6. The respondents hence have

falsely threatened for considering their

demand and have gone to an extent of

sending hooligans, additionally

making false police complaint against

our part thereby creating mental

mayhem to us. Being mentally tired

from incongruities on the part of the

respondents, we have no other resort

but to present this written complaint

with your good office."

8. When the allegations against each other are serious

allegations including allegations of offence against each other, we Company Appeal (AT) (Ins) No. 472 of 2021 4 are not convinced by the Appellant that police complaint do not

evidence any dispute between the parties. It is to be noted that all

the aforesaid complaints are much before initiation of proceedings

u/s 9 by the Appellant. The Adjudicating Authority has not

committed any error in relying of the facts and materials on record

to come to the conclusion that there was pre-existing dispute

between the parties.

9. We are of the view that IBC proceedings are not for the

purposes of adjudicating such dispute between the parties and are

not the recovery proceedings to recover the unpaid amount by the

official creditor whose claim is disputed by the 'Corporate Debtor'.

We, thus, do not find any error in the order of the

Adjudicating Authority, the appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical)

ss/nn

Company Appeal (AT) (Ins) No. 472 of 2021 5