Ashok Kumar Bhasin vs ABB Power Products and Systems India Limited & Ors
Company Appeal (AT)(Insolvency) No. 414 of 2023
Facts:
1.Corporate Debtor Sigma-C Infrastructure Pvt. Ltd. issued purchase order for supply of 145 KV 9-Bay DBB GIS Board required for CESC’s Princep Street Substation. Three purchase orders were issued by the Corporate Debtor for supply of GIS Board and other equipment as prince street substation of CESC Limited.
2.Operational Creditor has only received amount of Rs. 81,33,600/-. Operational Creditor issued tax invoice dated 16th May, 2018. All materials were received by 30th May, 2018. Outstanding amount as per invoice was Rs. 7,43,21,225/-. Operational Creditor followed for payment and issued letters dated 25.09.2018, 03.10.2018, 11.10.2018 and 12.10.2018 and lastly on 31.10.2018.
3.Demand Notice Under Section 8 of the Code was issued on 26.10.2020 demanding an amount of Rs. 7,32,51,745 as principal amount with 18% interest totaling Rs. 10,10,88,798/-. Demand Notice was not replied by the Corporate Debtor. An application under Section 9 of the Code was filed by the Operational Creditor on 24.02.2021.
4.On 17th July, 2022, supplementary affidavit was filed by the Operational Creditor bringing proof of service of Demand Notice. Operational Creditor filed its Rejoinder to the Reply before the Adjudicating Authority. Statement was made on behalf of the Corporate Debtor seeking adjournment on the ground of possibility of settlement between the parties.
5.The Adjudicating Authority heard parties on 02nd January, 2023 and delivered its order on 08.02.2023 admitting Section 9 Application.
Issue: Whether the order passed by the AA was correct?
Arguments:
For Appellant:
1.Counsel contended that the Adjudicating Authority has only considered one submission as to whether the petition has been duly signed and verified by the competent person. It is submitted that the Adjudicating Authority has admitted the petition holding that the same was filed by the competent person without considering any other submissions.
2.Counsel submitted that in Reply it has also pleaded that Operational Creditor has failed to file any document proving delivery of the materials which fact was also noticed in the communication by Advocate of Operational Creditor. Operational Creditor in Section 9 Application did not file any proof of service of Section 8 Notice. The burden of proof lies on the Operational Creditor proving delivery of good before any claim for payment can be considered.
For Respondents:
1.Counsel submitted that the Adjudicating Authority, the principal submission raised by the Appellant was that Petition has not been duly signed and verified by the competent person hence deserved to be rejected on this ground. It is submitted that there was no dispute regarding delivery of goods between the parties nor at any point of time, any such issue was raised by the Corporate Debtor and for the first time, pleas regarding non-submission of proof of service of goods has been raised whereas the Reply itself contains contradictory pleading.
2.It was submitted that the Operational Creditor has sent several letters requesting for payment of balance amount and has also personally met the Corporate Debtor but at no point of time, any communication was sent by the Corporate Debtor raising any issue regarding non-delivery of goods.
Decision: NCLAT uphold the decision of AA.
Rationale:
1.NCLAT noted that correspondence which was at the relevant time between the parties indicate that there was clear statement in the Letter dated 25.09.2018 that all the materials were received by 30th May, 2018 and Corporate Debtor was informed that ABB Service Engineer’s Team which was posted at the substation is being withdrawn. It is very relevant to notice that at no point of time prior to filing reply to Section 9 Application. The corporate debtor issued any such letter or complaint informing the Operational Creditor about non-delivery of goods. The tax invoice which was noticed above clearly contains the details of vehicles with their numbers by which goods were delivered.
2.It noted that Additional Affidavit clearly indicates that Appellant has clearly avoided to make any statement as to whether the Appellant has taken tax input credit of tax invoice or not. Be that as it may, all facts and relevant circumstances, at the relevant time indicate that no issue regarding supply of goods was raised by the Corporate Debtor from May, 2018 prior to filing of the Reply which was filed by the Corporate Debtor in April, 2022.
3.In Demand Notice as well as Section 9 Application, there was categorical pleadings of the Operational Creditor that there is no dispute or demur with regard to goods supplied. The statement was made due to attending facts and circumstances when after supply of goods no issue regarding supply or delivery was raised.
Order Copy:
