Vds Plastics Pvt. Ltd vs Pal Mohan Electronics (P) Ltd

VDS Plastics Pvt. Ltd. .Appellant

Versus

Pal Mohan Electronics (P) Ltd. .Respondent

Present: For Appellant: Mr. D. Moitra, Advocate.

For Respondent: Mr. K.K.Sharma, Senior Advocate with Mr. ,vrial, Advocate.

ORDER

14.09.2017 - The Appellant- 'Operational Creditor' preferred an

application under section 9 of the Insolvency and Bankruptcy Code,

2016 (hereinafter referred to as 'I&B Code) for initiation of 'Corporate

Insolvency Resolution Process' against the 'Corporate Debtor'. Learned

Adjudicating Authority (National Company Law Tribunal) New Delhi

Bench, New Delhi, by impugned order dated 21st April, 2017 rejected

the application there being a dispute in existence.

2. Learned Counsel for the Appellant while submitted that there is

no dispute pending or in existence and referred to the decision of

Appellate Tribunal in "Kit-usa Software Pvt. Ltd. Vs. Mo bi lox

Innovations Pvt. Ltd. Company Appeal (AT) (Insolvency) 6 of 2017",

contended that mere a dispute giving a colour of genuine dispute or -2-

illusory, raised for the first time cannot be a ground to reject the

application under section 9 of the 'I&B Code'.

3. Per contra, according to Learned Counsel for the Respondent,

there is a dispute in existence, which have been noticed by the

Adjudicating Authority.

4. We have heard Learned Counsel for the parties and perused the

record.

5. From letter dated 1st August, 2016 written on behalf of appellant-

'Operational Creditor, it appears that statutory notice for winding up

under section 433(e) and 434(1)(a) of the Companies Act, 1956 was

issued by appellant on the respondent-'Corporate Debtor'. Therein it

was mentioned that pursuant to the order placed by the 'Corporate

Debtor', the goods and materials were duly supplied as per the entire

satisfaction of the 'Corporate Debtor' and the same were duly

acknowledged. The amount sold, supplied and delivered to the

'Corporate Debtor' is worth Rs. 1,48,37,586/- (Rupees One crore forty-

eight lakhs thirty-seven thousand five hundred eighty-six only) and

against the above mentioned amount, part payment has been received

of Rs.57,56,610/- (Rupees Fifty-Seven Lakhs Fifty-Six Thousand Six

Hundred and Ten only) and balance amount of Rs.90,80,976/- (Rupees

ninety lakhs eighty thousand nine hundred seventy-six only) is payable

to appellant as on that date.

-3-

6. In reply to the said letter on behalf of 'Corporate Debtor', by letter

dated 20th September, 2016 the claim was denied and the appellant was

intimated as follows:

"It is pertinent to mention here that it is completely

incorrect to state that goods and materials worth

Rs. 1,48,37,586/- were supplied by your client to our

client. Our Client never acknowledged and accepted the

said goods and materials.

5. That the contents of para no.5 of the notice under

reply are false and denied. It is specifically denied that a

balance amount of Rs.90,80,976/- is outstanding as on

date against the aforesaid alleged supply.

6. That the contents of para no.6 of the notice under

reply are false and denied. It is denied that the goods and

materials were ever supplied by your client to our client

as per orders placed by our client and the same were duly

received by our client."

7. From the aforesaid two letters, both of which were addressed prior

to issuance of notice under section 8 of the 'I&B Code', as we find that

there is an existence of dispute with regard to supply of goods and

materials. In spite of notice under section 433(e) and 434(1)(a) of the

Companies Act, 1956, and receipt of reply, no steps was taken by the -4-

appellant. Much thereafter, application for initiation of 'Corporate

Insolvency Resolution Process' was filed. In the circumstances, we find

no reason to interfere with the impugned order wherein the Adjudicating

Authority held that there is an 'existence of dispute'.

8. In absence of any merit, the appeal is dismissed. However, in the

facts and circumstances of the case, there shall be no order as to cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) (Balvinder Singh) Member (Judicial) Member(Technical)

ar