Swastik Enterprises vs Hajee A.P. Bava & Company Constructions ...

Hajee A.P. Bava Company Constructions Pvt. Ltd. ...Respondent

Present: For Appellant : Mr. G.K. Jain, Chartered Accountant

For Respondent : Mr. Sunav Rastogi, Advocate

ORDER

27.09.2018 The 'Operational Creditor' filed an application under Section

9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the

'I&B Code') for initiation of 'corporate insolvency resolution process' against the

respondent 'Hajee A.P. Bava & Company Constructions Pvt. Ltd'. The

respondent on appearance brought to the notice of the Adjudicating Authority

(National Company Law Tribunal), Bengaluru Bench, Bengaluru that the

outstanding amount which was due to the 'Operational Creditor' was offered a

sum of remaining amount Rs. 8,03,317/- which they refused to accept. In this

way, the Adjudicating Authority by the impugned order dated 11th July, 2018

while rejected the application directed the respondent to pay the remaining

amount of Rs.8,03,317/- if it is already not paid. Learned counsel appearing on

behalf of the appellant submits that there was no document on record about

payment of any amount and the appellant denied the claim of Rs. 46,69,915 as

was demanded by demand notice dated 11th January, 2018. No settlement has

been arrived at for the same. Reliance has been placed on the impugned order 2

to submit that the wrong statement has been made which has been accepted

that a sum of Rs. 20 lakhs was paid without interest.

Pursuant to the earlier order, the respondents filed additional affidavit

enclosing the copy to suggest that the amount of Rs. 8,03,317/- has already

been paid in the account of the appellant. The appellant in its pleadings has

also so accepted. The amounts were remitted in the bank through RTGS initially

for a sum of Rs. 5 lakhs on 16th March, 2018 and another sum of Rs. 15 lakhs

was remitted on 28th March, 2018. Apart from this Rs. 20 Lakhs, further amount

of Rs. 8,03,317/- has been deposited by respondent pursuant to the order of the

Adjudicating Authority. Thus, total amount of Rs. 28,03,317/- has already been

deposited in the account of the appellant. Now the learned counsel appearing

on behalf of the appellant raised the question of interest but it cannot be decided

whether any further amount is payable or not in a petition under Section 9. In

the aforesaid background, there being a doubt about 'debt and default', the

Adjudicating Authority has rightly rejected the application under Section 9 of the

I&B Code. We find no merit in this appeal, it is accordingly dismissed. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk/

Company Appeal (AT) (Insolvency) No. 505 of 2018