TaxTMI 
TaxTMI 
2022 (7) TMI 366
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....Virender Ganda Learned Counsel appeared for the Appellant submitted that the Appellant is aggrieved by the order passed by the Adjudicating Authority dated 16.11.2021 in admitting the application filed by the first Respondent herein is erroneous in law and on facts. 3. The Learned Senior Counsel submitted that the first Respondent herein claims debt from the Corporate Debtor and alleges default on the basis of an oral purchase order of the Corporate Debtor for purchase of mild steel billets. The Respondent raised invoices for supply of such goods which were sold and delivered to the Corporate Debtor. On the basis of invoices raised by the first Respondent, dues have been paid by the Corporate Debtor, except in case where the goods of inferior quality and the Corporate Debtor duly informed the Respondent about the quality of the goods and sought to rectify the same. The claims of the Respondent is clearly time barred and the petition under IBC is not maintainable being time barred and on the ground of pre-existence of dispute namely pending civil suits on the alleged claims. 4. The Learned Senior Counsel further submitted that the Respondent promised to take back the inferior ....
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....urisdiction and such petitions shall be treated as Applications under Sections 7, 8 or 9 of the Code, as the case may be dealt with in accordance with Part-II of the I&B Code, 2016. The proviso states that the Petitioner shall submit all information other than information forming part of the records transferred in accordance with Rule 7 required for admission of the Petition under Sections 7, 8 or 9 of the Code within 60 days from the date of the Notification (07.12.2016) failing which the petition shall abate. 7. It is submitted that the Respondent failed to file the application within a period of 60 days from the date of transfer of the CP No. 186 of 2016 pending before the Hon'ble High Court at Hyderabad which got transferred on 07.06.2018 to NCLT, Hyderabad Bench-I. It is submitted that the Respondent filed I.A. No. 79 of 2021 under Section 60(5) of the IBC, 2016 seeking to receive additional documents. The Respondent brought new documents and alleges notice issued under Form-3 dated 13.03.2019 which was sent by the Respondent to Corporate Debtor and a reply dated 22.03.2019 was issued by the Corporate Debtor to the said demand notice. However, the reply of the Corporate Deb....
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....nt and the allegations made thereto are baseless. The Appellant raised the said issue after receipt of demand notice under Form-3. The Learned Counsel contended that the Appellant/Corporate Debtor now raises frivolous issue of existence of disputes when the Application under Section 9 of IBC was filed before the Hon'ble Adjudicating Authority. Therefore, the disputes raised are mere bluster and a spurious dispute raised to ward off the responsibility of repayment of debt as claimed by the Respondent. 12. The Learned Counsel further submitted that prior to filing of Section 9 Application by the Respondent, a notice demanding payment was issued under Section 434 of the Companies Act, 1956 on the Corporate Debtor on 13.04.2016 which was duly acknowledged by the Corporate Debtor and a reply was received by the Respondent on 11.05.2016. Thereafter, the Respondent filed a CP No.186 of 2016 before the Hon'ble High Court at Hyderabad for winding up of a Corporate Debtor under Sections 433, 434 and 439 of the Companies Act, 1956. However, the said Application was transferred to the Hon'ble Adjudicating Authority from the Hon'ble High Court on 07.06.2018 in view of Rule 5 of Companies (tr....
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....the Appellant and the Corporate Debtor who are second part of the preamble of the MoU, have agreed to repay the amount of Rs.1,77,15,636/- by 29.02.2016. At the last page of the MoU the Respondent and the Appellant and the Corporate Debtor have signed and affixed their signatures. Therefore, this Tribunal is of the view that there is no coercion as alleged by the Appellant. Moreover, there is no challenge to the MoU dated 29.02.2016 before any court of law on the basis that the said MoU attained under duress or coercion. It is not out of place to mention that the Appellant/ Corporate Debtor failed to adhere to the MoU and the cheques issued also dishonoured and there is no dispute with regard to dishonoured of cheques and pending proceedings under N.I. Act. Further, the Respondent issued a demand notice under Section 434 of the Companies Act, 1956 dated 13.04.2016 through the Advocate to the Appellant/Corporate Debtor demanding to make payment of Rs.1,77,15,636/-. It is also stated that the cheques deposited and the same have been returned unpaid with endorsement stop payment on 04.04.2016. The details of cheques, and the dates, the amounts have been given in a tabular column at pa....
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....2.03.2019 through their advocate stating that the signatures on the MoU and cheques obtained forcefully by threatening the Appellant. From the perusal of the application filed by the Respondent at Column 2 of Part-IV, the amount claimed as Rs.1,77,15,636/- due from 04.04.2016 to 04.03.2019. At Part-V, Column 8 the Respondent mentioned the invoices raised by the Respondent/operational creditor and relied upon MoU and dishonoured of cheques and filing of C.P. No. 186 of 2016 before Hon'ble High Court. Even otherwise, for the purpose of limitation it is seen from the demand notice and from the Application filed under Section 9 by the Respondent before the Adjudicating Authority, the default shown as 04.04.2016 and the Application filed before the Adjudicating Authority in the month of May, 2019 is within the period of limitation as prescribed under law. Therefore, the application is not barred by limitation. 22. From the sequence of events, it is evident that the debt and default has been proved and the Adjudicating Authority rightly admitted the Application in accordance with law. This Tribunal does not find any illegality or infirmity in the order passed by the Adjudicating Autho....