Sumeet Kumar & Ors vs Jay Ace Technologies Ltd. & Ors

Sumeet Kumar & Ors. ...Appellants

Versus

Jay Ace Technologies Ltd. & Ors. ...Respondents

Present: For Appellants : Mr. Sanjay Gupta and Ms. Mahima Singh, Advocates

For Respondents : Mr. Karunesh Tandon and Mr. Chandra Shekhar Goswami, Advocates

Mr. Avnish Matta, IRP

ORDER

07.05.2019 The Respondent - 'Jay Ace Technologies Ltd.' (Operational

Creditor) filed an application under Section 9 of the Insolvency and Bankruptcy

Code, 2016 (for short, the 'I&B Code') against 'M/s. Micromax Energy Ltd.'

(Corporate Debtor) having admitted by the impugned order dated 17th December,

2018 by the Adjudicating Authority (National Company Law Tribunal), New Delhi

Bench - III, the Appellants - Shareholders of the 'Corporate Debtor' have

preferred this appeal.

2. Learned counsel appearing on behalf of the Appellants submitted that

there was a 'pre-existing dispute' about supply of goods (Batteries) supplied by

the 'Operational Creditor'. Reliance has been placed on e mail dated 23rd

November, 2017, which reads as follows :

2

"From: Krishan Bansal [mailto: krishan.bansal@micromaxenergy.com]

Sent: 23 November 2017 10:25

To: 'Sudhir Goel' Cc: 'Mukesh' Subject: RE: payment schedule

Dear Sudhirji

Ref our meeting of yesterday....

As stated in the meeting and also discussed subsequently with all concerned, this is to reiterate that we would be either retaining the warranty amount of Rs. 60 lakh or otherwise would be needing FD for the same. The warranty amount shall be released immediately on completion of warranty period.

Further as regard excise benefit, this is to state that necessary assistance/cooperation in this regard shall be duly extended by our group. As soon as you recover the amount from the Govt, the same may be adjusted against the amount of Rs. 30 lakh retained by us on this account. Further to state that any shortfall/excess will be made up by us on actual realisation of money.

You are requested to confirm the above so that the matter could be placed before our competent authority for further course of action."

3. On hearing the parties and going through the record and also e mail dated

23rd November, 2017 we find that there is no dispute about the quality or short

supply of the goods and the communication relates to the warranty to be given

Company Appeal (AT) (Insolvency) No. 86 of 2019 3

by the respondent. The other e mail dated 1st March, 2018 are subsequent to

the Demand Notice dated 4th January, 2018, we are not taking into consideration

the communication between the parties.

4. At this stage, the learned counsel for the Appellants submits that the

Appellants intend to settle the matter with the 'Operational Creditor'.

5. Mr. Avnish Matta, Interim Resolution Professional is present in person and

submits that 9 claims have been received for Rupees Six Crores and Thirty Lakhs

in all. The 'Committee of Creditors' have already been constituted.

6. In the facts and circumstances, while we are not inclined to interfere with

the impugned order dated 17th December, 2018. However, this order will not

come in the way of the Appellants to settle the matter with 'M/s. Jay Ace

Technologies Ltd.' and other 'Financial Creditors and 'Operational Creditors' and

thereafter move an application u/s 12A of the I&B Code before the 'Committee

of Creditors.

7. The appeal stands disposed of with aforesaid observations. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

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

/ns/gc

Company Appeal (AT) (Insolvency) No. 86 of 2019