TaxTMI 
TaxTMI 
2023 (7) TMI 312
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....ereunder, the 'Corporate Debtor', was 'admitted', into the 'Corporate Insolvency Resolution Process', in an 'Application', filed under Section 9 of the I & B Code, 2016, r/w Rule 6 of Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules 2016, by the '1st Respondent / Operational Creditor / Petitioner'. 2. It is represented on behalf of the Petitioner /Appellant, as 'Third Party', the 'Petitioner / Appellant', has preferred the IA No. 23 / 2023 in Comp. App (AT) (CH) (INS.) 11 / 2023, seeking 'Leave', to file the instant Comp. App (AT) (CH) (INS.) 11 / 2023, before the 'Appellate Tribunal'. 3. It is the version of the Petitioner / Appellant, that numerous 'contentious points' / 'controversies', exists between the 'inter se Parties', including (a) Non production of test certificates; (b) Non submission of self inspection reports; (c) Poor quality of goods and the consequent non lifting of goods by BGR Energy Systems Ltd; (d) Legal Notice dated 27th April 2019 and corresponding Reply Notice dated 12th May 2019, which Reply Notice clearly disputed any liability to the 1st Respondent much prior to the date of Issuance of Notice under Section 8 of the Code and (....
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....cation under Section 7 or 9 is admitted, the 'Corporate Insolvency Resolution Process' starts in such case one of the aggrieved party being the 'Corporate Debtor' has a right to prefer an appeal under Section 61, apart from any other aggrieved person like Director(s) of the company or members, who do not cease to be Director(s) or member(s), as they are not suspended but their function as 'Board of Director(s)' is suspend. 19. The 'Corporate Debtor' if represented before the Adjudicating Authority through its Board of Directors or any person authorised by Board of Director or its officers, for the purpose of preferring an appeal, no objection can be raised that the 'Corporate Debtor' cannot appear through its Board of Directors or authorised person or officer through whom 'Corporate Debtor' represented before the Adjudicating Authority. Once a 'Corporate Debtor' appeared before the Adjudicating Authority through its Board of Director(s) or its officers or through authorised person and is heard before admission of an application under 'I & B Code', being aggrieved such 'Corporate Debtor' cannot....
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....otherwise affected as 'Shareholder' of the 'Company'), 'Leave', can be granted as 'Third Party', on an 'Interlocutory Application / Petition' , filed by him, as per Rule 31 of the NCLAT Rules, 2016, by the 'Appellate Tribunal', exercising its 'Discretion' and 'Inherent Power', in terms of Rule 11 of the NCLAT Rules, 2016. Viewed in that perspective, the filing of IA No. 23 / 2023 in instant Comp. App (AT) (CH) (INS.) 11 / 2023 (seeking 'Leave', to prefer the instant 'Appeal', by the 'Promoter' / 'Shareholder' of the 'Corporate Debtor' / 'Third Party', is perfectly 'maintainable' in the 'eye of Law', and the same is 'allowed', for meeting the 'ends of Justice'. No costs. IA Nos. 23, 24 & 25 / 2023 in Comp. App (AT) (CH) (INS) No. 11 / 2023 & Comp. App (AT) (CH) (INS) No. 11 / 2023 Company Appeal (AT) (CH) (INS.) No. 11 of 2023 JUDGMENT (Physical Mode) Justice M. Venugopal, Member (Judicial): Comp. App (AT) (CH) (INS.) No. 11 / 2023: The 'Appellant / Promoter / Shareholder' of the 'Corporate Debtor' / 'M/s. Vantage Machine Tools Private Limited', has preferred the instant Comp. App (AT) (CH) (INS.) 11 / 2023, as an 'Aggrieved Person', in respect of the 'impugned ....
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....ght also be due to the defectiveness in the making of goods by the CD, which is possible. Hence, unless any concrete evidence is produced with regard to the BGRESL rejecting the materials in the first place and rejecting the material on the ground of the defective raw material in the second place, it cannot be said that the quality of the material was the reason for the BGRESL not lifting the material from the CD. Apart from that, a letter addressed by the CD to the Chairman and Managing Director APGENCO does not anywhere spell that the BGRESL has refused to lift the material on the ground of defective raw material. Moreover, it says that the CD executed works as a sub-contractor to M/s. BGR Energy Systems Limited for the works allotted by APGENCO. It is stated that the CD has to receive an amount of Rs.4.25 Lakhs towards settlement of bills for executed and completed works and that they have contacted M/s.BGR Energy Systems Limited, but there was no positive response. It is mentioned that they are facing severe liquidity crises as most of the funds were stuck up in the bills. It is only mentioned that material worth Rs.40 tonnes for which they have completed the allotted works is ....
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.... the above there need not be any demur in concluding that the CD acknowledged the debt and has failed to discharge the debt." and finally admitted the 'Company Petition', and appointed a 'Interim Resolution Professional', and declared 'Moratorium', etc. Appellant's Submissions : 3. According to the Learned Counsel for the Appellant, the 'impugned order', dated 28.11.2022, passed by the 'Adjudicating Authority', 'National Company Law Tribunal', Amaravati Bench, in CP (IB) No. 51 / 9 / AMR / 2021, in admitting the Section 9 Application, filed by the 1st Respondent / Operational Creditor / Petitioner, is an 'illegal' one, because of the fact that numerous 'Pre-existing Disputes', between the 'Parties', were not taken note of in proper and real perspective. 4. The Learned Counsel for the Appellant submits that there is 'no evidence on record', to exhibit that the 'Test Certificates', were given to the 'Corporate Debtor', in compliance with the conditions in the 'Purchase Order', but, this vital fact was not taken into consideration, by the 'Adjudicating Authority / Tribunal', at the time of passing the 'Impugned Order'. 5. The Learned Counsel for the Appellant proceeds t....
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....oduced, for the first time in 'Rejoinder', before the 'Adjudicating Authority' / 'Tribunal', which, on mere perusal show that they relate to some 'Parties' named 'Sri Vijayalakshmi Steel Traders'; 'M/s Shine Steels', 'M/s. WHM Visakhapatnam'; and 'M/s. BM BSO', Vishakapatnam, and they were dated before the 'Dates of Purchase Order', thereby, showing that they do not relate to the 'Corporate Debtor. 12. It is pointed out on behalf of the Appellant that the main Contractor, namely BGR Energy Systems Limited, had lifted only 85 MT out of 300 MT of Steel ordered, as BGR Energy System Ltd was unwilling to lift steel for which Test Certificates were not produced. Moreover, BGR Energy Systems Limited were of the view that the material supplied, by the 1st Respondent had not matched the 'quality standards', prescribed by them, which were back-to-back applicable to the 1st Respondent and were set out in the 'Purchase Orders', issued to the 1st Respondent. 13. Continuing further, on behalf of the Appellant, it is pointed out that the 1st Respondent, had approached the 'Corporate Debtor', with a promise that they would produce the 'Test Certificates', that were due and requested the ....
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....s Pvt. Ltd., v. Kirusa Software Pvt. Ltd. (vide Civil Appeal No. 9405 of 2017), wherein at Paragraph 40, it is observed as under: 40. "It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the me....
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....referred to the judgment in Re Bayoil SA [1999] 1 WLR 147 as follows, and concluded:- "27. This, of course, is not a case of a disputed debt. There is a judgment debt and it can be enforced immediately. However, Mr. Chivers draws attention to Re Bayoil SA [1999] 1 WLR 147, which deals with a case not involving a disputed debt but involving a cross-claim by the company, the subject of the petition or the intended petition, where the amount of the cross-claim exceeds the petition debt. The headnote to Re Bayoil recites the essential facts. The petitioner claimed for freight. The established law is there is no defence of set-off available in relation to a claim to freight. The claim went to arbitration and the arbitrators made an award in favour of the petitioner. The petitioner then presented a petition on the basis of the sum determined by the arbitration award. The company applied for the petition to be dismissed or stayed on the ground that it had a genuine and serious counterclaim in an amount which exceeded the petition debt. It was a matter of detail in that case, which the company put forward to advance its case, that it had not been able to litigate that counterclaim....
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.... that a pending proceeding challenging an award or decree of a tribunal or Court would not make the debt contained therein a debt that is disputed. 19. We may hasten to add that there may be cases where a Section 34 petition challenging an Arbitral Award may clearly and unequivocally be barred by limitation, in that it can be demonstrated to the Court that the period of 90 days plus the discretionary period of 30 days has clearly expired, after which either no petition under Section 34 has been filed or a belated petition under Section 34 has been filed. It is only in such clear cases that the insolvency process may then be put into operation." 19. The Learned Counsel for the Appellant, adverts to the 'Order' of this 'Tribunal', dated 13.01.2022, in the matter of Sherbahadur D. Yadav v. Rohan Dyes and Intermediates Ltd. (vide Comp. App (AT) (INS.) No. 472 of 2021), wherein, at Paragraphs 8 and 9, it is observed as under: 8. "When the allegations against each other are serious allegations including allegations of offence against each other, we are not convinced by the Appellant that police complaint do not evidence any dispute between the parties. It is to be no....
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....ise the rent on the basis of the deemed continuation of lease deed. It is also contended that the Corporate Debtor vacated the ground floor without any intimation to the Operational Creditor, and moved out their computers and other official equipments overnight. Thereafter, on inspection of the premises, damages to the property were noticed for which the Operational Creditor is claiming damage charges from the Corporate Debtor for the damage caused to articles such as AC, Chairs and Tables, false roofing, flooring, plumbing and carpet based on estimated repair charges. 36. In this case, the question, 'whether lease Rent falls under the category of 'operational debt' or not', loses its significance when the alleged lease rent itself is disputed. The undisputed claim is the sine qua non for initiating CIRP U/S 9 of the Code." 22. The Learned Counsel for the Appellant, refers to the 'Judgment' of this 'Tribunal', dated 24.02.2020, in the matter of Neeraj Jain v. Cloud Walker Streaming Technologies Private Limited (vide Company Appeal No. 1354 of 2019), wherein, at Paragraphs 74 and 75, it is observed as under: 74. "The claims in the heads mentioned above....
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....being in force and payable to the Government or to a local authority. This has to be contrasted with financial debts that may be owed to financial creditors, which was the subject-matter of the judgment delivered by this Court on 31.08.2017 in Innoventive Industries Ltd. vs. ICICI Bank [Innoventive Industries Ltd. vs. ICICI Bank, MANU/SC/1063/2017 : (2018) 1 SCC 407) (Civil Appeals Nos. 8337 - 38 of 2017). "29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing - i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the C....
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....ew to decide about the breech as per decision 'BiBi Durga Devi Vs. Shivram' AIR 1932 Lahore 148." 24. The Learned Counsel for the Appellant, refers to the 'Order' of this 'Tribunal', dated 06.10.2017, in A.D. Electro Steel Co. Pvt. Ltd. & Anr. v. Anil Steels (vide Comp. App (AT) (INS.) No. 194 of 2017), wherein, at Paragraphs 4 to 6, it is observed as under: 4. "The question about existence of a dispute fell for consideration before the Hon'ble Supreme Court in "Mobilox Innovations Private Ltd v. Kirusa Software Private Ltd, MANU/SC/116/2017". Taking into consideration the provisions in the 'I&B Code', the Hon'ble Supreme Court observed and held as follows: - "33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e, on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Au....
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....eject it. If the application made under sub- section (2) is incomplete, the adjudicating authority, under the proviso to sub-section 5, may give a notice to the applicant to rectify defects within 7 days of the receipt of the notice from the adjudicating authority to make the application complete. Once this is done, and the adjudicating authority finds that either there is no repayment of the unpaid operational debt after the invoice (Section 9(5)(i)(b)) or the invoice or notice of payment to the corporate debtor has been delivered by the operational creditor (Section 9(5)(i)(c)), or that no notice of dispute has been received by the operational creditor from the corporate debtor or that there is no record of such dispute in the information utility (Section 9(5)(i)(d)), or that there is no disciplinary proceeding pending against any resolution professional proposed by the operational creditor (Section 9(5)(i)(e)), it shall admit the application within 14 days of the receipt of the application, after which the corporate insolvency resolution process gets triggered. On the other hand, the adjudicating authority shall, within 14 days of the receipt of an application by the operational....
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....dence furnished by the financial creditor within 14 days. The corporate debtor is entitled to point out to the adjudicating authority that a default has not occurred; in the sense that a debt, which may also include a disputed claim, is not due i.e it is not payable in law or in fact. This Court then went on to State: "29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing - i.e before such notice or \ invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code. 30. On the other hand, as we have seen, in the case of a corporate debtor w....
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....solution process prematurely or initiate the process for extraneous considerations. It is for this reason that it is enough that a dispute exists between the parties." 5. In the present case, we find that there was an "existence of dispute" between the parties. Learned Counsel for the Respondent-'Operational Creditor' while did not dispute the aforesaid fact and submits that the amount due to the 'Operational Creditor' have already been paid. 6. In view of the fact that there was a dispute between the parties and the decision of the present case is covered by the Hon'ble Supreme Court in "Mobilox Innovations Private Ltd v. Kirusa Software Private Ltd" we have no other option but to set aside the impugned order dated 7th September, 2017 passed in CP (IB) No. 415/KB/2017. The said order is accordingly, set aside." 25. The Learned Counsel for the Appellant, cites the 'Order' of this 'Tribunal', dated 22.11.2019, in the matter of P.M. Mahendran v. Tharuvai Ramachandran Ravichandran & Ors. (vide Comp. App (AT) (INS.) No. 642 of 2019), wherein, at Paragraphs 9, 12 & 13, it is observed as under: 9. "From the documents at page 128, Annexure....
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....ys of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute [Section 8(2)(a)]. What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the demand notice or invoice, as the case may be. ....." At paragraph 51 it is held: "51. ..... Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence." .... [Emphasis supplied] 13. From the aforesaid correspondences it is clear that there is pre-existence dispute with regard to quality and service prior to issuance of Demand Notice. In view of the decision of the Hon'ble Supreme Court and this Appellate Tribunal in the matter of R.S Cottmark (India) Pvt. Ltd. ....
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....Also that, the 'Corporate Debtor', through email dated 02.11.2017, had confirmed the 'Outstanding Sum', and a 'Schedule', to make 'balance payment(s)', was / were also mentioned in the said email. 31. The grievance of the 1st Respondent / Operational Creditor / Petitioner is that, the 'Corporate Debtor', had not followed the 'Payment Schedule', envisaged and in the meanwhile the 1st Respondent's 'Composition of Partnership', was also changed and '5 out of the 7 Original Partners', were resigned. As a matter of fact, on 30.07.2018, the change in 'Composition', was 'registered', and that the Corporate Debtor, had decided to make further part payment of Rs.50,00,000/- through Cheque dated 04.04.2019 and on 11.04.2019, the 1st Respondent had presented the Cheque and the Cheque 'got returned', on 12.04.2019, with an endorsement 'insufficient funds'. 32. The Learned Counsel for the 1st Respondent submits that the 1st Respondent, had issued a Legal Notice on 27.04.2019, under Section 138 of the Negotiable Instruments Act, 1881, to the Corporate Debtor, and a 'Reply', was sent to the 1st Respondent by the 'Corporate Debtor', on 12.05.2019, mentioning that there is 'no Debt payable', ....
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....ements', made at the Workshop of M/s. Vantage Machine Tools Pvt. Ltd., dated 26.09.2022, was much after filing of 'Rejoinder', in Section 9 Application of I & B Code, 2016, and the document, being a self-serving one, prepared by an 'Individual of an Unknown Qualification', with the main intention of 'Defrauding' the 'Tribunal'. 39. The Learned Counsel for the 1st Respondent, adverts to the conditions annexed to the 'Purchase Order', which runs as under: Terms and Conditions: a. Freight and Loading Charges : At your scope (@ Quality Steel and Wire Products) b. GST : 18% Extra c. Delivery : Immediately as per material priority list d. Payment : 30 days credit after receiving the material e. Inspection : Self Inspection Report signed by you. f. Test Certificate : The above material should be delivered along with test certificate, and in each test certificate you need to mention Heat number, chemical properties and mechanical properties in 'test certificates'. 40. The Learned Counsel for the 1st Respondent, submits that the last Invoice was dated 24.10.2017, and that the 'Period of Limitation' for filing any 'Suit', is 'thr....
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....f a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be (Section 8(1)). Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute (Section 8(2)(a)). What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing - i.e it must exist before the receipt of the demand notice or invoice, as the case may be. In case the unpaid operational debt has been repaid, the corporate debtor shall within a period of the self-same 10 days send an attested copy of the record of the electronic transfer of the unpaid amount from the bank account of the cor....
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....y the operational creditor (Section 9(5)(i)(e)), it shall admit the application within 14 days of the receipt of the application, after which the corporate insolvency resolution process gets triggered. On the other hand, the adjudicating authority shall, within 14 days of the receipt of an application by the operational creditor, reject such application if the application is incomplete and has not been completed within the period of 7 days granted by the proviso (Section 9(5) (ii) (a)). It may also reject the application where there has been repayment of the operational debt (Section 9(5)(ii)(b)), or the creditor has not delivered the invoice or notice for payment to the corporate debtor (Section 9(5)(ii)(c)). It may also reject the application if the notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility (Section 9(5)(ii)(d)). Section 9(5)(ii)(d) refers to the notice of an existing dispute that has so been received, as it must be read with Section 8(2)(a). Also, if any disciplinary proceeding is pending against any proposed resolution professional, the application may be rejected (Section 9(5)(ii)(e)). 34....
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....d 11.11.2022 (vide Comp. App (AT) (INS) No. 662 - 663 of 2022), between Suzlon Synthetics Ltd. v. Stressed Asset Stabilization Fund (2022) 145 taxmann.com 594 (NCLAT-New Delhi), wherein, at Paragraph 14, it is observed as under: 14. ....... "There is no requirement in the adjudication of Section 7 application to calculate and fix the exact amount of debt in default of repayment. It is only to be seen whether the amount in default is more than the minimum or threshold value that is prescribed in Section 4 (1) of the IBC." Sale of Goods Act, 1930 : 47. It is pertinent to point out that to constitute a 'Transaction of Sale', there should be an 'Agreement', between the 'Parties', for the purpose of 'Transferring Title' in 'Goods'. Further, 'Right to reject the Goods', is not equivalent to 'Right for cancelling the Contract'. 48. As a matter of fact, 'Price', means 'Money Consideration', for the 'Sale of Goods', is a 'prime element', in a 'Transaction of Sale'. Moreover, the 'measure' of 'compensation', is the 'difference between the 'Contract Price', and the 'Price', at which, the 'Goods', were finally 'Sold', and 'incidental expenses'. 49. A 'Seller', can 'Claim' ....
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....17; and on 13.12.2017 Debtor paid Rs.20,00,000/-. Debtor, is liable to pay the balance amount of Rs.1,53,16,611/- along with interest at 24% per annum which was confirmed by debtor to operational creditor by email on 02.11.2017", and also at Paragraph 6, had observed that "the debt has accumulated to the tune of Rs.3,04,76,004/-, as on 22.07.2021". 58. In fact, in Form 3, 'Demand Notice' / 'Invoice', demanding payment, under I & B Code, 2016, as per Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, dated 30.07.2021, addressed to the 'Vantage Machine Tools Private Limited', represented by Mr. Pothluru Mohana Murali Krishna, Krishna District, under 'Particulars of Operational Debt', the 'Total Debt', as on 22.07.2021, was mentioned as Rs.3,04,76,004/-, and the 'Principal Outstanding', was mentioned as Rs.1,53,16,611/-. The interest outstanding, as on 22.07.2021, was Rs.1,51,59,393/-, and that the total Outstanding as on 22.07.2021, was Rs.3,04,76,004/-. 59. Before the 'Adjudicating Authority' / 'Tribunal', the 'Corporate Debtor' / 'M/s. Vantage Machine Tools Private Limited', in its 'Counter' to CP (IB) No. 51 / 9 / AMR / 2021, had ave....
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.... 'Damages', from the 1st Respondent / Petitioner, in terms of the ingredients of Section 73 of the Indian Contract Act, 1872, for the losses suffered by it, in lieu of 'inferior quality material supplied by the 1st Respondent / Petitioner. 63. As a matter of fact, the 'Corporate Debtor', before the 'Adjudicating Authority / Tribunal', in its 'Reply', had referred to the decision of the Hon'ble Supreme Court of India, in the matter of Union of India v. Raman Iron Foundry, reported in AIR 1974 at Page 1265, wherein, it is observed and held as under: "A claim for unliquidated damages does not give rise to a debt until the liability is adjudicated upon and damages assessed by an adjudicatory authority. When there is a breach of contract, the party who commits the breach does not eo instanti incur any pecuniary obligation nor does the party complaining of the breach becomes entitled to a debt due from the other party. The only right which the party aggrieved by the breach has is the right to sue for damages and this is not an actionable claim." 64. The Corporate Debtor, before the 'Adjudicating Authority' / 'Tribunal', took a stand that the 'alleged Claim', of the 1st Res....
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....o the initiation of 'Corporate Insolvency Resolution Process'. 70. The Learned Counsel for the 1st Respondent / Operational Creditor / Petitioner points out that the 'Corporate Debtor', had not 'denied' the Email address [in email dated 02.11.2017) , through which, the 'Balance Confirmation', had originated was [email protected] and when the email was not disputed and it belong to the 'Corporate Debtor' only, and it was not significant the 'Person', who sent that email, was describing himself in what capacity, because his capacity in the Office of the Corporate Debtor, was not known to the Operational Creditor and it should be within the exclusive knowledge of the 'Corporate Debtor only). In any event, if there was 'no Chief Executive', it is for the 'Corporate Debtor' to explain, how the 'Balance Confirmation', was generated by a person, describing himself as 'Chief Executive' of the Corporate Debtor, through the email of the 'Corporate Debtor'. 71. At this juncture, this 'Tribunal', points out that the 1st Respondent / Operational Creditor / Petitioner, through its Advocates, had issued a 'Registered Legal Notice', dated 27.04.2019, with 'Acknowledgment Due', to th....
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....Court of India, in Alok Shankar Pandey v. Union of India, reported in AIR 2007, Supreme Court at Page 1198. 75. In this connection, this 'Tribunal', aptly points out the decision of the Hon'ble Supreme Court of India in Secretary, Irrigation Department, Government of Orissa & Ors., v. G.C. Roy, reported in 1992, 1 SCC at Page 508, wherein, it is held that, 'a 'Person', deprived of the use of money, to which, he is legitimately entitled, has a right to be compensated and such compensation, may be called 'interest', 'compensation' or 'damages'. 76. 'Interest', can be 'allowed', by Court, if there is an 'Agreement', as to interest or usage of 'Trade', having force of 'Law', permits to grant it. 77. It cannot be gainsaid that like 'grant of interest', 'rate of interest', is also, in the 'discretion of the 'Court', in a reasonable manner, and the 'exercise of discretion', is to be a 'sound and prudent' one, and not based on any 'arbitrariness' or 'capriciousness', as the case, may be. 78. It is to be remembered that the 'Proceedings', under the I & B Code, 2016, are 'Summary in Character', and that an 'Adjudicating Authority', not being a 'Recovery Fora' or 'Court', (no elab....
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....d by the '1st Respondent / Operational Creditor / Petitioner'. Moreover, in a 'Transaction', between the '1st Respondent / Operational Creditor / Petitioner', and the 'Corporate Debtor', 'Shine Steels', is an 'Alien'. Besides these, there is nothing to point out in a convincing manner, to the subjective satisfaction of this 'Tribunal' that 'Transfer Certificates', found part and parcel of 'Sale of Goods Transaction', between the 'Parties'. 85. When the 'Delivery of Goods, were taken delivery by the 'Corporate Debtor', without any meandic mumbling and grumbling, then, it unerringly, points out that the 'Test Certificate', is not a 'prerequisite factor', in the earnest opinion of this 'Tribunal'. 86. Going by the last Invoice date, being 24.10.2017, the final 'Violation', would be on 24.10.2017, and at this distant point of time, if the 'Appellant' initiates any 'Legal' action, it will be clearly barred by time, in the considered opinion of this 'Tribunal'. That apart, even, in respect of the 'Test Certificates', and the 'Quality of Steel', supplied was not proper, and there is alleged 'Deficiency', admittedly, 'no steps were taken', by the 'Corporate Debtor', to get it 'decide....
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.... liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt'." 91. Section 3(6) of the I & B Code, 2016, defines 'Claim', meaning; (a) a right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured; (b) right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, unmatured, disputed, undisputed, secured or unsecured; 92. At this stage, this 'Tribunal', points out that the aspect of determining a 'Claim', which may include the interest by an 'Adjudicating Authority' / 'Tribunal', does not arise for the purpose of triggering the 'Corporate Insolvency Resolution Process', because of the fact that an initiation of 'Corporate Insolvency Resolution Process', under Section 7 or 9 of the I & B Code, 2016, will not amount to a 'Recovery Proceeding'. 93. It cannot be lost sight off that it is incumbent upon the 'Corporate Debtor', to show that its 'Liability', is in 'Dispute', as to the 'Debt....