2023 (5) TMI 528

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....herein has been admitted. 2. Brief facts of the case necessary to be noted for deciding this Appeal are:- i. The Operational Creditor is engaged in business of trading of Cotton and Yarn. The Corporate Debtor placed purchase orders for purchase of Cotton from Operational Creditor from time to time and pursuant to said purchase orders, the Operational Creditor supplied goods to Corporate Debtor from its office in Ahmedabad. The Operational Creditor raised five invoices to the Corporate Debtor between 11th July, 2016 to 09th September, 2016 amounting to Rs. 68,86,488/- in aggregate. ii. The Operational Creditor is maintaining a running account of the transaction and balance amount payable by Corporate Debtor on 09th September, 2016 was Rs. 65,36,488/-. iii. The Appellant and one Mr. Saurabh Gupta, Director of the Corporate Debtor entered into Compromise Agreement dated 21.02.2017 with Director of the Operational Creditor and one Mr. Ashok Jain, Director of M/s. Rishabh Texco Pvt. Ltd. As per Compromise Agreement, an amount of Rs. 80 Lakh was agreed to be adjusted as part payment of combined outstanding liability of Corporate Debtor to Operational Credito....

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.... Application. All the three entities namely Operational Creditor, M/s. Harsh Trading Company and M/s. Shiv Shakti International, Sirsa are companies controlled by one person namely Mr. Sheetal Garg and the payment was supposed to be made to the Operational Creditor would be deemed to be made in full if the same was paid to M/s. Shiv Shakti International, Sirsa and M/s. Harsh Trading Company. Learned Counsel for the Appellant further submits that Application was filed by the Corporate Debtor under Section 156(3) of the Criminal Procedure Code before the Magistrate where the Magistrate found that prima facie evidence of fraud and cheating is there and directed the police to register a First Information Report. An FIR has already been registered dated 03.03.2019 under Case Crime No. 0135/2019 under Section 420, 467, 468, 471 and 120-B where Report under Section 173(2) of Cr. PC was also filed. 4. Learned Counsel for the Respondent refuting the submissions of Learned Counsel for the Appellant submits that the Operational Debt of the Operational Creditor remains unpaid which is clearly reflected in the balance sheet of the Corporate Debtor ending on 31.03.2017. The amount due to the ....

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....e Balance Sheet of the Corporate Debtor as on 31st March, 2017 signed on 01.09.2017 has been filed by the Operational Creditor along with Section 9 Application. Copy of the balance sheet is part of Section 9 Application and has been filed in this Appeal in Volume-II. In the balance sheet under "Note 4" which is "Current Liabilities" under Heading "(A)"- "Trade Payables" are mentioned. "Note 4" and "A" 'Trade Payable' is as follows: "Note 4 2017 2016     Current Liabilities AMOUNT AMOUNT     1 TRADE PAYABLES (A) 56,780,124.66 49,317,881.39 2 OTHER LIABILITIES (B) 635,319.00 566,690.00 TOTAL   57,415,443.66 49,884,571.39     (A)  TRADE PAYABLES 2017 2016   AMOUNT AMOUNT       1 ............. ......... -   ... ............. .......... -   16 M/S BHAVESH TEXCOFAB PVT. LTD. AHMEDABAD 6,536,488.00 -   ... .............. ...... ...   35 M/S RISHABH TEXCO PVT. LTD. AHMEDABAD 7,825,916.00 10,170,741.00"   8. The above indicates....

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....ection 9 Application which is Settlement Agreement dated 21.02.2017 between Subhash Gupta and Mr. Saurabh Gupta (First Party) and Mr. Ashok Jain and Mr. Sheetal Garg (Second Party). The settlement agreement clearly indicates that the first party has agreed to sell their share in the immovable property to Mr. Ashok Jain and Mr. Sheetal Garg at the rate of Rs. 3,50,000/- Per Bigha and First party has received Rs. 80 Lakhs as advance from the Second Party by way of adjustment of liability to the First Party to the extent of Rs. 40 Lakhs in respect of M/s. Rishabh Texco Pvt. Ltd. and to the extent of Rs. 40 Lakhs by way of adjustment of liability from Mr. Sheetal Garg in respect of M/s. Bhavesh Texo Fab Pvt. Ltd. Ahmedabad. Translated copy of the settlement agreement is part of Section 9 Application. Following part of the Settlement Agreement is relevant and reads as follows: "..... That We, First Party whose land bearing Khasra No. 1102/10 Mi, area 12 Bigha Pukhta and Khasra No. 1102/1 area 5 Bigha Biswa Pukhta etc. whose details is mentioned in Sale Deed dated 18.04.2007 and some part of these lands is mentioned in the name of Saurabh Gupta S/o Shri Subhash Gupta in....