Simran Kaur vs Haiko Logistics India Pvt Ltd

Simran Kaur ... Appellant Shareholder of M/s. Datawind Innovations Private Limited Having her address at: 195, Ajit Nagar, Amritsar, Punjab - 143022

Versus

M/s. Haiko Logistics India Pvt. Ltd. ... Respondent No. 1

Having its Office at:

A-133, Street No. 4, Mahipalpur Extension, New Delhi-110037

Mr. Arvind Kumar, ... Respondent No. 2 Resolution Professional of M/s. Datawind Innovations Pvt. Ltd. # 303, 3rd Floor, Plot No. D-190, Ind. Area, Phase -8B, Sector -74, SAS Nagar, Mohali, Punjab - 160071.

Present:

For Appellant: Mr. Abhirup Dasgupta, Mr. Ishann Duggal and Mr. Virti Gujral, Ms. Bhawana Sharma, Advocates

Company Appeal (AT) (Insolvency) No. 1520 of 2019

Page 1 of 11 For Respondent: Mr. Udit Mishra and Mr. Pulkit Deora, Advocate for R-1.

Mr. Nitin Kant Setia, Advocate for R-2.

Judgment

(Date: 16.4.2021)

{Per: Dr.Alok Srivastava, Member (T)}

The present appeal has been preferred by Simran Kaur,

claiming to be a shareholder of the Corporate Debtor M/s.

Datawind Innovations Pvt. Ltd., under Section 61 of the Insolvency

and Bankruptcy Code, 2016 (hereinafter called IBC) aggrieved by

the Order dated 13.11.2019 (hereinafter called Impugned Order)

delivered by the Adjudicating Authority, National Company Law

Tribunal, Chandigarh (hereinafter called Adjudicating Authority) in

CP (IB) No. 311/CHD/PB/2018. By this order, the Adjudicating

Authority has ordered for initiation of the Corporate Insolvency

Resolution Process against the Corporate Debtor.

2. It is the case of Appellant that the Adjudicating Authority has

overlooked certain pre-existing disputes while adjudicating the

application of the Operational Creditor filed under Section 9 of the

IBC. The brief facts of the case as presented by Appellant and the

Company Appeal (AT) (Insolvency) No. 1520 of 2019

Page 2 of 11 Respondent No. 1are that they had business dealings wherein the

Respondent No. 1 (Operational Creditor) provided freight

forwarding services for import of goods and related services to the

Corporate Debtor. As part of their business dealing, the Corporate

Debtor availed freight forwarding services from the Operational

Creditor during the period 26.08.2016 till 8.12.2016. It is claimed

by the Appellant that disputes arose between the Corporate Debtor

and the Operational Creditor regarding freight forwarding of certain

goods booked by the Corporate Debtor, whose total value was

Rs.97,09,700/-. She has stated that goods sent through the

Operational Creditor reached their destination after inexplicable

delay while some goods were never delivered at their destination. It

is alleged by the Appellant that the Respondent No. 1 Company is

fully responsible for delays in delivering of goods and loss of some

goods in transit.

3. It is claimed by the Respondent No. 1 that certain invoices

raised by the Operational Creditor for freight forwarding were paid

by the Corporate Debtor while some others remained pending for

payment. The Operational Creditor filed a Civil Suit No. 819/2017

before Civil Judge-4, Patiala House Courts, New Delhi for recovery

of the said amount. Subsequently the Operational Creditor issued

Company Appeal (AT) (Insolvency) No. 1520 of 2019

Page 3 of 11 a demand notice to the Corporate Debtor under Section 8 of the

IBC on 19.12.2017 seeking payment of pending dues amounting to

Rs.86,07,122/-. The Corporate Debtor replied to the notice vide

letter dated 6.1.2018 stating that the pendency of a civil suit

relating to the same matter in a civil court is in the nature of a pre-

existing dispute between the Operational Creditor and the

Corporate Debtor, and hence the said notice should be withdrawn.

Thereafter the Operational Creditor sought to withdraw the Civil

Suit No. 819/2017 which was permitted by Additional District

Judge-04, Patiala House Courts, New Delhi vide order dated

20.01.2018.

4. The Company Petition No. 71/CHD/PB/2018 under Section

9 of the IBC, which had been filed by the Operational Creditor, was

also sought to be withdrawn by the Operational Creditor. The

Adjudicating Authority permitted withdrawal of this petition vide

order dated 26.3.2018 with liberty granted to the Operational

Creditor to file fresh petition with better particulars later.

5. A fresh demand notice dated 09.05.2018 under Section 8 of

the IBC was sent by the Operational Creditor to the Corporate

Debtor demanding payment of Rs.86,07,122/- which was due and

Company Appeal (AT) (Insolvency) No. 1520 of 2019

Page 4 of 11 payable to him as operational debt. The Corporate Debtorreplied to

the demand notice through letter dated 22.5.2018 claiming that the

Operational Creditor was supposed to provide professional logistics

services for handling valuable import shipment of the Corporate

Debtor. Such services were not provided by the Operational

Creditor, and more specifically, there were issues with regard to

loss of goods in transit and delays in shipment, due to which the

Corporate Debtor suffered a loss of Rs. 27,20,556/-.

6. Dissatisfied by response of the Corporate Debtor to the

demand notice, the Operational Creditor filed an application under

Section 9 of the IBC, which was admitted by the Adjudicating

Authority after due consideration and Corporate Insolvency

Resolution Process was initiated vide the Impugned Order dated

13.11.2019.

7. During the hearing of the appeal, Respondent No.1

submitted his reply to the appeal memo, whereupon a rejoinder

was filed by the Appellant. Both parties filed written submissions

alongwith copies of judgments in support of their respective

contentions. Upon direction by this Tribunal, The Respondent No.

1 filed an affidavit alongwith copy of Suit No. 819/2017 filed by the

Company Appeal (AT) (Insolvency) No. 1520 of 2019

Page 5 of 11 Operational Creditor against the Corporate Debtor and a copy of

the order dated 20.01.2018 of the Additional District Judge-04,

Patiala House, New Delhi permitting withdrawal of the said civil

suit with liberty granted to the plaintiff to file appropriate

proceedings, if any, before the concerned court.

8. In the arguments, the Learned Counsel for the Appellant has

stated that there is a catena of e-mails sent by the Corporate

Debtor to Operational Creditor (attached at pp. 66-69 of the

Appeal) which make the point of delay in shipment of goods by the

freight forwarder (Operational Creditor) and the shortage of goods

delivered at its Delhi warehouse abundantly clear. The Learned

Counsel has also referred to e-mail communications sent by the

Corporate Debtor (attached at pp. 91-94 of the Appeal) wherein

losses suffered by the Corporate Debtor due to delay in shipment

has been shown as the reason for the Corporate Debtor's inability

to make pending payments of certain invoices. He has also referred

to the e-mail sent to the Metropolitan Police in UK (attached at pp.

70-73 of the Appeal) wherein a complaint regarding missing cargo

was made by the Corporate Debtor on 2.6.2018, almost one and a

half year after the alleged loss. The Learned Counsel for Appellant

has pointed out that the Adjudicating Authority has not considered

Company Appeal (AT) (Insolvency) No. 1520 of 2019

Page 6 of 11 these disputes as pre-existing disputes while adjudicating the

application of the Operational Creditor in the Impugned Order.

9. The Learned Counsel for Respondent No.1 has stated that

though the Appellant has claimed to be a shareholder in the

Corporate Debtor Company, she has not provided any evidence of

the same. Therefore, she does not have a right to prefer this

appeal. The appeal, therefore, should be dismissed only on this

ground at the threshold. The Learned Counsel has further claimed

that though the Corporate Debtor was represented by its

authorised representative Rupinder Singh before the Adjudicating

Authority, he has chosen not to file any appeal against the

Impugned Order.

10. The Learned Counsel for Respondent No. 1 has also urged

that there is no pre-existing dispute in the matter and e-mails

shown by the Appellant to support her case were mostly sent after

the Section 8 notice was sent and hence are just an afterthought to

build up her case. He has also claimed that the correspondence

between the Metropolitan Police in UK and the Corporate Debtor is

not in nature of FIR, but is a mere complaint, which was made in

2018, much after the alleged loss of goods. Finally, the Learned

Company Appeal (AT) (Insolvency) No. 1520 of 2019

Page 7 of 11 Counsel has claimed that the Operational Creditor is just a freight

forwarder, who is not responsible for any loss of goods in passage

or for their delayed delivery. He has said that the dispute has no

connection with the performance of the service that is in the

control of the freight forwarder and hence the operational debt is

due and payable to him. Therefore, there is no infirmity in the

Impugned Order and the appeal deserves to be dismissed.

11. We have perused the documents submitted by all the parties

and the Impugned Order. We have also carefully considered the

arguments put forth by the parties in support of their respective

cases and the written submissions filed by them.

12. The first question that is looked into by us is whether the

Appellant has any locus standi to prefer this appeal, and whether

the appeal is maintainable on this ground, as has been urged by

the Respondent No. 1.

13. The Appellant has claimed to be a shareholder having 0.1%

shares of the Corporate Debtor in para 1(ii) of the appeal. Later in

the same appeal, in para 7(i), the Appellant has stated that she is a

shareholder having 0.6% shares of the Corporate Debtor, M/s.

Company Appeal (AT) (Insolvency) No. 1520 of 2019

Page 8 of 11 Datawind Innovations Private Ltd. Thus even the extent of

shareholding claimed by the Appellant in the Corporate Debtor is

not expressed unambiguously. Moreover, the Appellant has not

provided any evidence of her being a shareholder in the Corporate

Debtor Company in the form of share certificate or any other

document. This issue has been raised by the Respondent No.1 in

his reply affidavit and oral arguments wherein he has questioned

the locus standi of the Appellant for filing the appeal and has

pleaded that she has to be put to strict proof of her dealing vis-à-

vis the Corporate Debtor. He has also stated that the Appellant

was not authorized by the Corporate Debtor to represent it before

either the Adjudicating Authority or before this Appellate Tribunal.

In any pleadings or her written submissions, the Appellant has not

ventured to submit any proof of her being a shareholder in the

Corporate Debtor, moreso when this issue has been raised by the

Respondent No. 1. This is a requirement under Section 61(1) of the

IBC for preferring an appeal. The text of Section 61(1) of the IBC is

reproduced hereunder:-

"61. Appeals and Appellate Authority. - (1)

Notwithstanding anything to the contrary contained

under the Companies Act, 2013 (18 of 2013), any

person aggrieved by the order of the Adjudicating

Company Appeal (AT) (Insolvency) No. 1520 of 2019

Page 9 of 11 Authority under this part may prefer an appeal to the

National Company Law Appellate Tribunal.

Xxxxxxxxxxxxxxxxxxx"

14. In view of the provision under Section 61(1) of IBC that any

person aggrieved by the order of the Adjudicating Authority may

prefer an appeal, the Appellant has not been able to show as to

how she is aggrieved by the Impugned Order and is an interested

party for preferring this appeal. Moreover, since the authorised

representative of the Corporate Debtor in the matter that was filed

before the Adjudicating Authority has chosen not to file any appeal

against the Impugned Order it was necessary for the Appellant to

establish her locus standi for filing this appeal.

15. In the light of the above discussion, at the threshold, we find

that the Appellant is unable to establish how she is aggrieved by

the Impugned Order, and, therefore, her locus standi in filing this

appeal. The appeal is thus not maintainable as it doesn't satisfy

the criterion for preferring an appeal, as set out in Section 61(1) of

the IBC. All the other issues raised by the Appellant become

infructuous and it is not necessary to consider them.

Company Appeal (AT) (Insolvency) No. 1520 of 2019

Page 10 of 11

16. We, therefore, find no reason to interfere with the Impugned

Order dated 13.11.2019in CP (IB) No. 311/CHD/PB/2018 passed

by the Adjudicating Authority. The appeal is, therefore, dismissed

with no order regarding costs.

(Justice A I S Cheema) Member (Judicial)

(Dr. Alok Srivastava) Member (Technical) New Delhi 16th April, 2021

/aks/

Company Appeal (AT) (Insolvency) No. 1520 of 2019

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