TaxTMI 
TaxTMI 
2022 (4) TMI 13
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....ctor of the Corporate Debtor aggrieved by the judgment dated 31.07.2020 has come up in this Appeal. 2. Brief facts and sequence of events necessary to be noticed for deciding this Appeal are: (i) The Operational Creditor supplied poly propylene (PP) to the Corporate Debtor as per the demand raised by the Corporate Debtor. Invoices were raised in the name of the Corporate Debtor. (ii) The Operational Creditor filed a Civil Suit No.149 of 2015 against the Corporate Debtor for recovery of amount of Rs. 16,44,500/-. The suit was Decreed by Additional District Judge, Rohini Court vide judgment and order dated 08.09.2016, decreeing the suit for recovery of Rs. 16,44,500/- along with interest @ 12% per annum. The Operational Creditor filed Execution Petition, which was transferred to the Court of District & Sessions Judge, South District for Execution of the Decree being case No.424 of 2019. (iii) The Operational Creditor issued notice under Section 8 of the Code in Form-3, dated 06.04.2019 to the Corporate Debtor claiming amount of debt as Rs. 25,04,630/-. The notice under Section 8 of the code was not replied by the Corporate Debtor. (iv) An Applic....
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....mount of Rs. 16,44,500/-. Photocopy of the Demand Draft was attached along with Appeal, but the said amount has not been accepted by the Operational Creditor. The Corporate Debtor is a going concern and having turnover of approximately Rs. 12 crores and there are 100 employees (pre-lockdown) and there is good turnover after lockdown. 5. Shri Bharat Arora, learned Counsel appearing for Respondent No.1 refuting the submissions of learned Counsel for the Appellant contends that notice under Section 8 of the Code dated 06.04.2019 was sent to the Corporate Debtor, which was duly received by it. No reply to Section 8 notice was submitted by the Corporate Debtor and in the reply which was filed to Section 9 Application of the Operational Creditor, there was no pleading on behalf of the Appellant that notice under Section 8 has not been served. The Operational Creditor has filed an affidavit of compliance and an affidavit has also been filed before the Adjudicating Authority along with which, photocopy of the receipt issued by India Post was attached. In the receipt issued by India Post the address of the Corporate Debtor is 24 instead of 54-A, which was mistake by the Postal Authoritie....
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....tice was not served on the Corporate Debtor. When the notice was issued by the Operational Creditor at the correct address of the Corporate Debtor, we have no doubt that the envelope containing the address of the Corporate Debtor must be same as reflected in the notice dated 06.04.2019. The mere fact that receipt, which was issued by India Post mentions address of the Corporate Debtor instead of No.54-A, it is mentioned 24, does not bely the sending of notice. We further notice that Corporate Debtor had filed the reply to Section 9 Application, which has been brought on the record at page 99 of the paper-book dated 18.09.2019. In the Application filed under Section 9, there is specific mention of notice dated 06.04.2019 issued by the Operational Creditor. Notice dated 06.04.2019 specifically mentioned in the List of Dates and Events as well as in Part-IV of the Application and copy of notice dated 06.04.2019 was filed as Annexure A-4 along with the Application. In the reply, which was filed by Corporate Debtor dated 18.09.2019, there was no plea that notice dated 06.04.2019 was not served on the Corporate Debtor. Both in the preliminary objection and reply on merits, there is no sp....
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.... corporate debtor had approached the operational creditor for the supply of poly proplene (pp). Accordingly, as per the demand raised by the Corporate Debtor, material was supplied and against which invoice was raised in the name of Corporate Debtor. The material ordered by the Corporate Debtor was duly supplied by the Operational Creditor and the same was also duly received by the Corporate Debtor without any dispute. The Operational Creditor was shocked and surprised, since Corporate Debtor stopped conducting business with the Operational Creditor without clearing the outstanding amount. There were various oral communications between the Corporate Debtor and the Operational Creditor regarding the outstanding amount due from Corporate Debtor but the corporate debtor failed to pay the said outstanding amount and interest thereupon. Thereafter, the operational creditor instituted a suit for recovery against the Corporate Debtor bearing civil suit No.575402 of 2016 titled "M/S Royale Resinex Private Limited versus M/S Greatech Telecom Technologies Private Limited", wherein Sh. Prashant Kumar, Ld. ADJ, Rohini Court, Delhi on 08.09.2016 was pleased t....
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....ainable and the claim of the Respondent was a claim of 'operational debt' and we do not find any merit in the submission of the learned Counsel for the Appellant that there was no 'operational debt'. 13. We may also notice the judgments of this Tribunal relied by learned Counsel for the Appellant in support of his submission that Application under Section 9 filed by Respondent was not maintainable. Learned Counsel for the Appellant has relied on judgment of this Tribunal in "International Asset Reconstruction Co. Pvt. Ltd. v. Jayant Vitamins Ltd. - Company Appeal (AT) (Ins.) No.1472 of 2019". The above judgment was a case where Application filed by Operational Creditor was dismissed as barred by time. In the above case, Application was filed under Section 9 in the year 2019 whereas suit of recovery was Decreed on 17th October, 2005, which was held to be barred by time. Paragraph 2 of the judgment is as follows: "2. The Corporate Debtor - 'Jayant Vitamins Ltd.' committed default on 13th September, 1996. Thereafter, Appellant filed suit for recovery which was decreed on 17th October, 2005 and a case for execution is pending. Therefore, we find that the application under S....
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....38 shall have an overriding effect. Hence the Application under Section 9 filed by the Operational Creditor cannot be defeated on the ground that any Application for execution was pending, more so, when inspite of Decree passed on 08.09.2016, no payment was made by the Corporate Debtor. 17. Another judgment relied by learned Counsel for the Appellant in Company Appeal (AT) (Ins.) No.452 of 2020 - Sh. Sushil Ansal v. Ashok Tripathi and Ors. where the Appellant was a home buyer and an allottee and in whose favour there was already a certificate issued by UP RERA. In the above circumstances, this Tribunal held that the Decree holder though come within the definition of 'creditor', does not fall within the definition of 'financial creditor' and cannot file an Application under Section 7 due to the above reason, the said Appeal was allowed and Application filed under Section 7 by allottee was held to be not maintainable. The above judgment does not help the Appellant in the present case. The judgment of this Tribunal in "Digamber Bhonwen v. JM Financial Asset Reconstruction Company Limited - Company Appeal (AT) (Ins.) No.1379 of 2019" as well as Sushil Ansal (supra) were also to the ....