Suri Rajendra Rolling Mills vs Bengani Udyog Private Limited

IN THE MATTER OF: M/s. Suri Rajendra Rolling Mills Through its Partner Shri Saroj P Jain, Shed No. 183, GVMM Industrial Estate, Odhav Ahmedabad-382415, Gujarat ...Appellant Versus M/s. Bengani Udyog Pvt. Ltd. 30, Cotton Street, 2nd Floor, Kolkata West Bengal - 70007 ...Respondent Present:

For Appellant: Mr. Rajendra Beniwal and Mr. Kumar Sumit, Advocates. For Respondent: None.

ORDER

(Virtual Mode)

11.02.2021 Heard Learned Counsel for the Appellant at Admission stage.

2. The Present Appeal arises out of Impugned Order dated 06th January,

2020 (Annexure A/1, Page 22) which reads as under:

"Ld. Counsel for the Operational Creditor appears. Ld. Counsel for the Corporate Debtor appears.

An application was filed by the Operational Creditor under Section 9 of the I & B Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor claiming an amount of Rs. 5,61,000/- for default in payment. This Application has come up for hearing today.

2 Ld. Counsel for the Corporate Debtor filed objection and submitted that the Application is not maintainable on the ground that similar application was filed by the self same Operational Creditor which is withdrawn vide order dated 04/09/2018.

A look at the order demonstrates that this Applicant was permitted to withdraw a similar application filed for the self same cause of action without liberty to file fresh application. As such, the application is not maintainable. Hence dismissed.

However, no order as to cost."

3. It appears that the Appellant had earlier issued Notice under Section 8 of

Insolvency and Bankruptcy Code, 2016 (I&B, Code in short) on 04th April, 2018

(See Diary No. 22727- Additional Documents- Page 30). Thereafter on

21.04.2018, the Corporate Debtor M/s. Bengani Udyog Pvt. Ltd. had sent Reply

(Annexure A/2- Additional Documents- Page 48) raising disputes that the

concerned MoU was forcibly got executed and that the dues were already

recovered and claimed that the Appellant had siphoned funds and goods and

stocks. Reference was also made to Arbitration Proceedings as well as Civil Suit

No. 1234 of 2016 to restrain Appellant from entering factory and also filed

Criminal Case No. 218 of 2016 claiming fraud.

4. The Appellant however filed C.P. (IB) 1026/KB/2018 (Page 24 read with

Annexure A/1 of Additional Documents) claiming Operational Dues. The said

Application later on came to be withdrawn on 04th September, 2018 as per

Annexure A/3, Page 31 which order reads as under:

"Ld. Counsel for the Operational Creditor appears. Ld. Counsel for the Corporate Debtor also appears. He seeks

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time to file Vakalatnama. It is to be filed along with the Board Resolution during the course of the day. Ld. Counsel for the Operational Creditor submitted that he has instructions from the Corporate Debtor to withdraw the matter. Permission to withdraw the matter is granted. Matter stands withdrawn and disposed off."

5. The Appellant says that it had subsequently sent another Notice under

Section 8 of I&B, Code on 25th January, 2019 as per Annexure A/4- Page 32 and

the Respondent appears to have replied even to this Notice on 08th February,

2019 (Annexure A/5- Page 37) and referred to the earlier developments and the

earlier disputes raised. The Appellant however filed fresh Application under

Section 9 of I&B, Code having C.P. (IB) 605/KB/2019 vide Annexure A/6 - Page

44.

6. The Learned Counsel for the Appellant is submitting and the Appeal also

claims that the Impugned Order is not sustainable as fresh notice under section

8 of I&B, Code was given and thus there was a fresh cause of action. It is stated

that when earlier the Application was filed, the Corporate Debtor had told the

Appellant that it would settle the dues but subsequently the dues were not

settled and hence fresh notice under section 8 of I&B, Code was given and hence

there was a fresh cause of action.

7. We have gone through the earlier Application under Section 9 which was

filed and the new Application which was filed under Section 9 of I&B, Code. Both

of the Applications referred to the same amount and similar facts are averred. In

the new Application under Section 9 Annexure A/6-Page 47 'Statement of Facts'

stated in Paragraph 8 as under:

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"The Petitioner has filed insolvency application u/s 9 of IBC 2016 on 10/05/2018 with NCLT Calcutta bench vide CP (IB) 1026-KB/2018. However, the petitioner has withdrawn the application subsequently in view of that there was no hope of CIRP for corporate debtors the secured creditor has initiated action under SARFAESI Act to get physical possession of the properties of the respondent and will sale under auction. However, no such action taken by the secured creditor. Hence this application was made again."

8. Considering this, we are not ready to accept the submissions made by the

Learned Counsel that the Corporate Debtor had stated that it would settle the

dues and because of that the earlier Application was withdrawn. The Learned

Counsel for the Appellant referred to earlier Order of withdrawal Annexure A/3

where the Tribunal recorded that "Learned Counsel for the Operational Creditor

submitted that he has instructions from the Corporate Debtor to withdraw the

matter". On basis of such noting in the earlier Order (which could even be typing

error) the argument is tried to be made that there was offer of settlement. We do

not accept such submissions. It would be strange that the Opposite Party gives

instructions to the other side and other side on instructions from the Opposite

Party withdrawing petition.

9. Even if it was to be accepted that any such statement was made, the same

was not put on record and the new Application with note 8 as reproduced above

does not give any support to the Appellant.

10. Even otherwise, when present Application under Section 9 is filed, the

earlier Reply Notice which was sent by the Corporate Debtor discloses Pre-

existing dispute. The Section 9 Application claims debt relying on Ledger Account Company Appeal (AT) (Ins.) No. 334 of 2020 5

of Appellant itself. This read with the Notices on record shows various disputes

pre-existing between parties. That being so, even if one is to look into merits in

the alternative, the Application under Section 9 does not show that it deserves

to be admitted.

A. For the above reasons, there is no substance in the Appeal. The Appeal is

dismissed.

B. The Appellant would be at liberty to pursue remedy, if any, in any other

Forum if permissible by Law.

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

[V.P. Singh] Member (Technical)

Basant B./md/

Company Appeal (AT) (Ins.) No. 334 of 2020