JUDGEMENT

ASHOK BHUSHAN, J: 1. This Appeal has been filed against the Order dated 08th February, 2023 passed by National Company Law Tribunal, Kolkata Bench, Court No.

-2- Company Appeal (AT) (Insolvency) No. 414 of 2023 II (hereinafter referred to as “The Adjudicating Authority”) admitting Section 9 Application of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “The Code”) filed by the ABB Power Products and System India Limited, the Respondent No.1 herein. The Appellant suspended director of the Corporate Debtor Sigma-C Infrastructure Private Limited has filed this Appeal challenging the admission order. 2. Brief facts of the case necessary to be noted for deciding this Appeal are :- (i) The Corporate Debtor Sigma-C Infrastructure Pvt. Ltd. issued purchase order for supply of 145 KV 9-Bay DBB GIS Board required for CESC’s Princep Street Substation. Three purchase orders were issued by the Corporate Debtor for supply of GIS Board and other equipment as prince street substation of CESC Limited. The purchase orders were amended from time to time, lastly amended on 25.01.2018 and 15,05,2018. In pursuance of three purchase orders, the equipment was supplied by the Operational Creditor against the purchase orders. The Operational Creditor has only received amount of Rs. 81,33,600/-. Operational Creditor issued tax invoice dated 16th May, 2018. All materials were received by 30th May, 2018. Outstanding amount as per invoice was Rs.

7,43,21,225/-.

Operational Creditor followed for payment and issued letters dated 25.09.2018, 03.10.2018, 11.10.2018 and 12.10.2018 and lastly on 31.10.2018. (ii) The Corporate Debtor assured for making payment however when no payment was made, Demand Notice Under Section 8 of the Code was -3- Company Appeal (AT) (Insolvency) No. 414 of 2023 issued on 26.10.2020 demanding an amount of Rs. 7,32,51,745 as principal amount with 18% interest totaling Rs. 10,10,88,798/-. Demand Notice was not replied by the Corporate Debtor. An application under Section 9 of the Code was filed by the Operational Creditor on 24.02.2021. (iii) Notices were issued by the Adjudicating Authority in the Section 9 Application to the Corporate Debtor to file its Reply. On 17th July, 2022, supplementary affidavit was filed by the Operational Creditor bringing proof of service of Demand Notice. Operational Creditor filed its Rejoinder to the Reply before the Adjudicating Authority. Statement was made on behalf of the Corporate Debtor seeking adjournment on the ground of possibility of settlement between the parties. The Adjudicating Authority adjourned the proceedings twice subsequently the Adjudicating Authority was informed that no settlement has been entered between the parties. The Adjudicating Authority heard THE parties on 02nd January, 2023 and delivered its order on 08.02.2023 admitting Section 9 Application. (iv) Aggrieved by the Admission order, this Appeal has been filed. 3. Learned Counsel for the Appellant challenging the Order passed by the Adjudicating Authority contends that the Adjudicating Authority has only considered one submission as to whether the petition has been duly signed and verified by the competent person. It is submitted that the Adjudicating Authority has admitted the petition holding that the same was filed by the competent person without considering any other submissions.

Learned Counsel for the Appellant submits that Appellant in the Reply has -4- Company Appeal (AT) (Insolvency) No. 414 of 2023 also pleaded that Operational Creditor has failed to file any document proving delivery of the materials which fact was also noticed in the communication by Advocate of Operational Creditor. Operational Creditor in Section 9 Application did not file any proof of service of Section 8 Notice. The burden of proof lies on the Operational Creditor proving delivery of goods before any claim for payment can be considered. Operational Creditor failed to prove the delivery