JUDGEMENT

DR. ASHOK KUMAR MISHRA, TECHNICAL MEMBER

1. The appeal has been filed by the Appellant- ‘Subhash Chandra Goyal’ Sole Proprietor of Goyal Enterprises under Section 61 R/w Section 9 of the ‘Insolvency and Bankruptcy Code, 2016’ (in short ‘Code’) against the impugned order dated 01st December, 2021 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal), Ahmedabad Bench in CP No. CP(IB) 555/9/NCLT/AHM/2019. 2. The Appellant has sought the following reliefs: a. That the impugned order as passed by the Adjudicating Authority be set aside; b. That the application filed by the appellant under section 9 of the Insolvency and Bankruptcy Code, 2016 against the Respondent be allowed and the Corporate Insolvency Resolution Process be initiated against the Respondent- Corporate Debtor; c. Pending the hearing and final disposal of the present Appeal, direct the Respondent to deposit the amount of Rs. 26,89,290 so admitted by them before this Tribunal etc. 3. The Appellant is a trader of Iron & Steel and other metals etc. The Appellant does not have warehouse and once it gets the order from the manufacturer/Supplier then it places the order on the other supplier / manufacturer and asked them to directly supply the material to the Manufacturer/Supplier / Corporate Debtor (CD) in the present case. The Appellant is the Sole Proprietor of M/s. Goyal Enterprises. It is stated by the Ld counsel for the Operational Creditor(OC)/Appellant that the CD has approached the Appellant for providing supplies of Sponge Iron etc. goods to the CD which will be used by the CD as raw materials / process materials for its plant at Bhavnagar - Vallabhipur Highway. The business dealing between the Operational Creditor (OC) and CD commenced from 2018 and thereafter, CD was placing orders on the Appellant / OC and the OC have been procuring the materials from the supporting manufacturer / suppliers and thereafter directly being supplied to the CD. A look at Tax Invoices of OC dated 04th May, 2019 (appearing at page 48 of the Appeal paper Book) reveal that even supplier reference is also mentioned. It is also revealed from the Appeal paper book that 42 consignment of materials each ranging of invoice values between Rs. 5 lac to Rs.12 lacs approx. has been supplied and the Appellant has furnished the GST Invoice and also the supplier / manufacturer invoice alongwith the E-way bills since the time that was prescribed under the GST Laws and the CD has never disputed any supply. The CD was aware of the source of material from where the Appellant was suppling the materials. The Appellant had supplied Sponge Iron in lumps and Sponge Iron and other goods of Iron and Steel to the CD on 04th May, 2019 for a total value of Rs. 30,21,749/-. It is also submitted that in the said supplies, the CD has raised Debit Notes dated 10.05.2019 for a value of Rs. 3,32, 459/- for quality issues which has been accepted by the Appellant and acknowledged and accounted to the credit of the CD by the Appellant and is making only a claim of Rs. 26,89,290/- which has not paid by the Appellant. At page 12 of the Appeal paper book, the Appellant states as follows: The details of three invoices at dispute are as under:

Sr.

No.

Date Invoice Amount (in Rs.) Date Debit Notes (in Rs.)

1. 4th may, 2019 1,017,467/- 10th May, 2019 112,649/-

2. 4th may, 2019 993,135- 10th May, 2019 108,917/-

3. 4th may, 2019 1,011,147/- 10th May, 2019 110,893/- Total 3,021,749 332,459/-

4. What the Appellant is stating that the balance outstanding of Rs.26,89,290 became due and payable on the next date of invoice i.e. 05.05.2019 as per agreed terms and conditions.

5. The Ld counsel for the Appellant has stated that they are chasing for these payments since 11.05.2019 and being aggrieved due to non-payment of legitimate dues of the CD, the Appellant was constrained to prefer demand notice in Form-3 & Form-4 under the Code vide notice dated 01.07.2019. The Ld. Counsel fo