ASHOK BHUSHAN, J.

This appeal has been filed by the Appellant challenging the order dated

03.12.2024 passed by the Adjudicating Authority (National Company Law Tribunal), Court V, New Delhi rejecting Section 9 application CP IB No.

Cont’d…/

629/(ND)/2021 filed by the Appellant against the Respondent herein. Aggrieved by the order rejecting Section 9 application, this appeal has been filed. Brief background facts necessary to be noticed for deciding this appeal are:

(i) The Appellant is in business of distribution of IT and electronic products and is authorised distributor of various IT companies including Apple. The Respondent is reseller of electronic products to customers procured from various distributors including Appellant.

(ii) Appellant supplied various electronic goods of various manufacturers including Apple to the Respondent subject to terms and conditions as agreed between the parties. Respondent used to issue balance confirmation from time to time.

(iii) On 30.09.2020, the Respondent issued a stamped balance confirmation informing the balance payable by Respondent to the Appellant as on 30.09.2020.

(iv) Standard Sales Terms and Conditions of Ingram were accepted by Respondent on 25.02.2021, in pursuance to which Appellant supplied various electronic goods including iPhone 11, iPhone 12 as well as iPad by invoices dated 03.03.2021 to 16.03.2021, totalling to an amount of Rs.7.33 Crores. Supplies were duly accepted by the Respondent. Each invoice contained payment term of 21 to 30 days.

(v) On 11.05.2021, Appellant sent an email to the Respondent informing overdue amount of Rs. 7,32,89,324/-. Respondent was requested to arrange to provide overdue amount on most urgent basis. The said email was replied by the Respondent on 13.05.2021. Respondent commented that intention to clear all payables is one of fundamentals of the Respondent. After email dated 13.05.2021, on 15.05.2021, Appellant again sent an email requesting the Respondent to share payment plan of Rs.7.33 Crores. The email dated 15.05.2021 was replied by the Respondent informing that Respondent shall share a more specific plan once lockdown opens. Respondent also requested the Appellant to withdraw the BG invocation notice.

(vi) On 19.05.2021, the Appellant invoked bank guarantees and realized Rs.2 Crore.

(vii) On 21.05.2025, the Appellant raised a Debit Note for Rs.7,71,365/-

upon Respondent on account of accrued interest on unpaid invoices having due date 11.06.2021. Respondent handed over two post- dated cheques dated 24.05.2021 totalling to Rs.5,39,20,029/-. Cheques were deposited by the Appellant in its account in HDFC Bank. On 28.05.2021, the cheques were returned unpaid with reason “Payment Stopped by Drawer”.

(viii) After dishonour of cheques, a legal notice dated 02.06.2021 was given by the Appellant to the Respondent, calling upon the Respondent to make payment of Rs.5,39,20,029/- within 15 days. Notice was under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheques. Notice dated 02.06.2021 was replied by the Respondent on 21.06.2021 pleading that various Apple products purchased by the Respondent from distributers of Apple including Appellant i.e. iPhone 8 in the year 2018 has not yet taken back. Respondent has huge lot of unsold Apple products which Respondent was entitle to return to Apple and settle all claims. Respondent is also entitled for backend discount which was receivable through Apple authorized distributors. In the reply notice, Respondent claimed that they are entitle to receive an amount of Rs.7,05,36,162/-.

(ix) The said notice dated 21.06.2021 was replied by the Appellant on

14.07.2021 alleging that said reply has been send with ill intention and tainted with malice. The claim was refuted and it was stated that as per Appellant Reseller Agreement any disposition of the product is to be dealt by the Apple and with respect to the backend discount, the Appellant is not obliged to discharge.

(x) On 07.08.2021, Appellant issued d