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2024 Supreme(Online)(NCLT) 1669
NATIONAL COMPANY LAW TRIBUNAL
SMT. BIDISHA BANERJEE, SHRI. D. ARVIND, JJ
Abdul Hannan – Appellant
Versus
M/s. Jai Jute and Industries Limited – Respondent
Company Petition (IB) No. 154/KB/2022 | Interlocutory Application (IB) No. 1209/KB/2023
For the Appellants/Petitioners: Mr. Rishav Banerjee, Adv., Mr. Patita Paban Bishwal, Adv., Ms. Suranjana Chatterjee, Adv.
For the Respondents: Mr. D. N. Sharma, Adv., Mr. Nilay Sengupta, Adv., Ms. Urmila Chakraborty, Adv., Mr. Ankon Rai, Adv., Mr. Sujit Banerjee, Adv., Ms. Ananya Barik, Adv.
The presence of serious allegations against an operational creditor proves a pre-existing dispute, making insolvency claims inappropriate under the IBC.
Headnote:(A) Insolvency and Bankruptcy Code, 2016 - Section 9 - Application seeking initiation of Corporate Insolvency Resolution Process (CIRP) rejected due to pre-existing disputes and allegations of forgery - Operational Creditor claimed default of Rs. 2,16,17,430/- - Corporate Debtor contested this, citing prior allegations of fraud and complaints regarding inferior quality of goods - Court concluded that disputes were pre-existing owing to criminal complaints. (Paras 30-34)
(B) Dispute Resolution - The existence of serious allegations and complaints indicates that proceedings under IBC are inappropriate for resolving disputes of this nature - The court referred to multiple precedents indicating that issues of forgery and fraud must be dealt with in regular suits and not under summary proceedings of IBC - The Corporate Debtor's claims of forgery were deemed a 'moonshine defence,' further solidifying the Court's stance on rejecting the operational debt claim. (Paras 31.2-31.6)
| Table of Content |
|---|
| 1. application for corporate insolvency initiated. (Para 3 , 4 , 5 , 6) |
| 2. allegations of forgery and non-payment highlighted. (Para 9 , 10 , 11) |
| 3. issues of pre-existing dispute and forgery. (Para 30 , 31 , 32) |
| 4. company petition dismissed. (Para 34) |
ORDER
Per Bidisha Banerjee, Member (Judicial)
1. The Court congregated through hybrid mode.
2. Heard the Learned Counsel, Mr. Rishav Banerjee appearing on behalf of the Applicant and Mr. D. N. Sharma, appearing on behalf of the Respondent.
Company Petition (IB) No. 154/KB/2022
3. The instant application is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 , for brevity “I&B Code” read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, for brevity “AA Rules” by one Abdul Hannan, hereinafter referred to as “Operational Creditor”/ “Applicant” against M/s. Jai Jute and Industries Limited, hereinafter referred to as “Corporate Debtor”/ “Respondent” seeking for a direction to commence the Corporate Insolvency Resolution Process, for brevity “CIR Process” in respect the Corporate Debtor herein.
4. The total amount claimed to be in default is Rs. 2,16,17,430/- with an interest at the rate of 12% per annum till the final payment. The Debt fell due from 14.07.2017.
Facts in nutshell:
5. The Operational Creditor has supplied raw jute to the Corporate Debtors from time to time which was duly received by the Corporate Debtor. After certain payments made by the Corporate Debtor to the Operational Creditor, an outstanding amount of Rs. 2,16,17,430/- is due and payable by the Corporate Debtor.
6. The Corporate Debtor issued a confirmation of account on April 01, 2020, where the Corporate Debtor confirmed the amount of Rs. 2,16,17,430/- payable to the Operational Creditor. The Copy of the Confirmation of account is annexed at Pages 37-38 to the application.
7. Demand Notice under Section 8 of the I&B Code read with Rule 5 of the AA Rules on 17.03.2022, to the Corporate Debtor which was delivered on 21.03.2021. Copy of the demand notice with annexures and speed post acknowledgment with the proof of services annexed at Pages 39-102 to the application.
The Learned Counsel for the Applicant would submit:
8. That, the Operational Creditor has supplied the raw jute and issued several bills for the same from 08.05.2017 to 14.07.2017, annexed at Pages 42-100 to the application which clearly evinces the claim by way of operational debt of the applicant.
9. That, after a plethora of follow up with the Corporate Debtor for the outstanding amount, some cheques were issued to the Operational Creditor. The said cheques were not deposited to the bank as the Corporate Debtor requested the Operational Creditor that there was no sufficient fund in the bank account of the Corporate Debtor. The copies of the cheques are annexed at Page 31-36 to the application.
The Learned Counsel for the Respondent would per contra submit as follows:
10. That, much prior to the issuance of demand notice on 16.03.2022, a complaint, criminal in nature was lodged by the Corporate Debtor on 17.07.2017 at the Posta Police Station. It was alleged that the Operational Creditor, his close aide and representative Mr. Mehboob Hasan, has committed forgery, in as such as they have manufactured false documents, made short supply of raw jute and in conspiracy with the employees of the Corporate Debtor manufactured and fabricated satisfactory inspection reports about the inferior quality of raw jute. The Copy of the complaint dated 17.07.2017 before the Officer in Charge of Posta Thana is annexed at Page 17-21 to the Reply Affidavit.
11. Thereafter, another complaint was lodged on 31.12.2017 at the same Police Station against the Operational Creditor and said Mr. Mehboob Hassan for threatening the Debtor of to life, property as well as damaging the reputation of the directors of Corporate Debtor for non-payment of instalment of December 2017. The copy of the complaint dated 31.12.2017
