2020 (8) TMI 390

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....t and that the Respondent has defaulted in the payment. 2. Facts of the case is as under:- i) The Appellant is a Company incorporated and registered under the provisions of the Companies Act, 1956 is an inter-alia engaged in the business of wholesale trading/distributorship of paper and paper board for various paper mills such as Khanna Paper Mills Ltd., Century Textiles & Industries Ltd., Sidarth Papers Ltd., etc. around Delhi and Northern India. ii) That the Appellant has been dealing with the Respondent since the financial year 2013-14 on a regular basis and has been supplying paper and paper board to the Respondent based on written/verbal orders received from the Respondent from time to time. iii) Since the Respondent was regularly transacting with the Appellant, the Appellant as concession and as a matter of trust, was supplying goods to the Respondent on a credit of 30 (Thirty) days. iv) The Appellant was maintaining a running Account in respect of business dealings with the Respondent and against which random payments had been made by the Respondent from time to time. v) The amounts thus, randomly paid by the Respondent were settled against the outstanding inv....

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....ondent objected to the same but the Appellant informed that in future this would not be repeated. Thereafter, the Respondent vide letter dated 14.09.2018 replied to the said letter dated 13.09.2018. 7. That the Respondent submitted that the Appellant has not filed their statement of accounts from the financial year 2013-14, 2014-15, 2015-16 and 2016-17 but has only filed alleged statement of accounts for the year 2017- 18 and 2018-19 the Appellant filed statement of accounts stating from the Financial Year 2013-14, the same would disentitle the Application under Section 9 of the 'IBC', has been made out. 8. That the Respondent submitted that the Appellant completely concealed the fact that the Appellant also issued credit notes in the financial years 2013-14,2014-15, 2015-16, 2016-17and 2017-18 to the Respondent towards special quantity discount on the basis of letters dated 28.12.2013 and 16.04.2016. Therefore, it does not lie in mouth of the Applicant to say that there is no agreement between the Appellant and the Respondent where the Appellant agreed to grant the Respondent special quantity discount. 9. The Ld. Adjudicating Authority after hearing the parties passed the follo....

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....nt has been found by them, but no response was received. 12. Learned counsel for the Appellant also referred to e-mail dated 12.05.2018 at page 482 Vol.- III and ledger statement at page 483-497 Vol.- III sent by the Appellant whereby confirmation of balance sum of Rs. 2,34,10,945/- outstanding as on 30.04.2018 from the Respondent after attaching the ledger/statement of accounts for the period commencing from 01.04.2017 to 30.04.2018 which states the Opening Balance as on 01.04.2017 as Rs. 1,64,98,604/-. 13. Learned counsel for the Appellant referred to e-mail dated 17.05.2018 at page 498 Vol.- III, the Respondent neither objected to above said Opening Balance sums and Closing Balance sums nor objected to the statement of accounts/ledger for the period 01.04.2017 to 30.04.2018. On the contrary, in the said e-mail, the Respondent even confirmed an outstanding sum of Rs. 2,34,10,945/- as on 30.04.2018 qua the Appellant which sum apparently included the above said sum of above said Closing Balance sum for the FY 2017-2018 i.e. Rs. 2,39,80,892/-. 14. Learned counsel for the Appellant further referred to statement of account for FY 2018-19 at page 470-472 Vol.- III and Statutory noti....

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....dit given by the Operational Creditor in the FY 2018-2019 (-) Rs. 2,06,119/- [87,325 + 66,105 +52,869/-] Para 7.10 (VI), Pg. 16-17 Vol-I of Appeal Total payable (a) +(b) - (c) -(d) Rs. 1,81,45,943/- (Operational Debt) 17. The learned counsel for the Appellant submitted by referring to the paragraph 5 of the impugned order whereby the Ld. Adjudicating Authority have recorded a finding that the Respondent in their e-mail dated 17.05.2018 has admitted that as on 30.04.2018 the amount due from the Respondent to the Appellant was Rs. 2,34,10,945/-. 18. Learned counsel for the Appellant referring to the judgment passed by the Hon'ble Supreme Court in Macquarie Bank Limited Vs. Shilpi Cable Technologies Limited (2018 Vol.- II SCC 674) held as under:- "24. Even otherwise, the important condition precedent is an occurrence of a default, which can be proved, as has been stated hereinabove, by means of other documentary evidence. Take for example the case of an earlier letter written by the corporate debtor to the operational creditor confirming that a particular operational debt is due and payable. This piece of evidence would be sufficient to demonstrate that such debt is due and....

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.... fact that after the receipt of the notice issued under Section 8 of the 'IBC' pointed that the outstanding amount is only Rs. 22,56,833/- and the Respondent is ready and willing to pay and the Appellant is instead of receiving Rs. 22,56,833/- is taking advantage only this fact has been recorded by the Ld. Adjudicating Authority. FINDINGS 23. After hearing the parties and perusal of the record that in view of finding recorded by the Ld. Adjudicating Authority in para 4 of the impugned order categorically statement made by the Respondent that only Rs. 22,56,833/- was due to be paid to the Appellant and he has also handed over the cheque but Appellant has refused to accept the said cheque. i) Admittedly, the 'Operational Debt' is exceeding Rs. 1 lakh. ii) The Appellant sent notice under Section 8 of the IBC to the Respondent and the Respondent have accepted and was not disputed the amount. iii) The Appellant have also produced documentary evidence in the support of operational debt before the Ld. Adjudicating Authority and this Appellate Tribunal. iv) In view of the aforesaid, admitted fact, we are of the considered view that the Ld. Adjudicating Authority committed err....