NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI

18.11.2025 Present: JUSTICE N. SESHASAYEE, MEMBER (JUDICIAL)

MR. ARUN BAROKA, MEMBER (TECHNICAL)

Mr. PARVINDER SINGLA Proprietor of Ganpati Metals …Appellant Vs M/s J V INDUSTRIES PRIVATE LIMITED …Respondent (Arising out of Order dated 19.11.2024 passed by the Adjudicating Authority (National Company Law Tribunal, Bench V, New Delhi) in C.P. (IB)/721(ND)

2023)

For Appellant: Mr. R K Bhalla, Mr. Sunil Upadhyay & Mr. Mithilesh Kr.

Yadav, Advocates For Respondents: Mr. Yogendra Aldak & Mr. Agrim Arora, Advocates

JUDGEMENT

Per Justice N. Seshasayee, Member (Judicial)

Challenging an Order rejecting the appellant’s petition in C.P. (IB)/721(ND) 2023 filed under Sec.9 IBC by the Adjudicating Authority (National Company Law Tribunal, Bench V, New Delhi) vide its Order dated 19 November, 2024, on the ground of pre-existing dispute between the parties is the appellant.

Facts

1. The facts which provide a backdrop runs as below:

a) The appellant was a trader in copper scraps and between July, 2020, and July, 2021, the appellant had supplied copper scrap to the respondent for which the appellant had raised multiple invoices. The issue pertains to non-payment of value of the goods supplied during 2021-2022 FY. According to the appellant, as on 01.04.2021, in its books the appellant had a debit balance of Rs.3.27,26,178. Till July, 2021, several sales had taken place and the respondent had been making payments too, which were adjusted against the amount due on earlier bills. The last of the payment so made was on 17.07.2021 when the respondent paid Rs.50.0 lakhs. Critically, between 14.06.2021 and 06.07.2021, the appellant had sold five consignments of goods whose aggregate invoice value was Rs.3,07,89,249.60/-. The last payment was adjusted against the outstanding as on that date, which left the balance outstanding payable by the respondent at Rs. 2,70,83,131/-. According to the appellant it is entitled to charge interest at 18% p.a. if the invoice-amount is not paid on the date on which it falls due for payment.

b) Demanding payment, the appellant sent e-mails dated 26.12.2022, 31.12.2022 and 01.08.2022. And, then he issued the statutory notice dated 25.09.2023 under Sec.8 IBC, demanding payment of Rs.2,70,83,131 with interest amounting to Rs.1,05,71,632, totaling Rs.3,76,54,763.

c) This demand notice was responded to by the respondent vide its reply dated 04.10.2023, wherein the respondent did not dispute the correctness of the balance demanded, but raised an issue that it has come to learn that GST authorities have initiated investigation for ‘fake/bogus input tax credit (ITC)’ against the appellant and that the GST Registration of the appellant has been cancelled with effect from 23.07.2022 and refers to a certain undertaking given by the appellant on 17.06.2021 that appellant would take all necessary steps to enable the respondent to avail ITC and that the appellant would indemnify the respondent vis-à-vis any liability that may befall on the respondent including rejection/denial of ITC and promises to pay should the appellant provides a bank guarantee along with the 100% penalty and interest up to the date of furnishing the bank guarantee.

d) The appellant in its rejoinder pointed out that the issue of GST violation is not the concern of the respondent.

e) This was followed by the appellant laying its petition under Sec.9 IBC. And, the respondent stuck to its position.

2. After examining the materials before it, the Adjudicating Authority has found that the communications between the parties reflected a continuing disagreement over the ITC issue and the demand for furnishing a bank guarantee has been there even prior to the issuance notice under Sec.8 IBC. Relying on the judgment of the Hon’ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs Kirusa Software Pvt. Ltd. [(2018) 1 SCC 353 and Subhash Chandra Goyal v. K.B. Ispat Pvt. Ltd. [C.A. (AT)(Ins) No. 166 of 2022) the NCLT held t