Per: Justice Rakesh Kumar Jain (Oral)

05.01.2024:

Comp. App. (AT) (Ins) No. 515 of 2023

This appeal is directed against the order dated 23.03.2023 passed by

the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench,

Kolkata) by which an application filed under Section 9 of the Insolvency and

Bankruptcy Code, 2016 (in short ‘Code’) r/w Rule 6 of the Insolvency and

Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short

‘Rules’) bearing CP(IB) No. 41/KB/2021 for resolution of an amount of Rs.

4,43,14,123.50/- has been dismissed.

2.

In brief, the Appellant (Operational Creditor) is a Pvt. Ltd. company,

engaged in the business of wholesale distribution of the surgical and other

medical instruments, apparatus and equipments whereas the Corporate

Debtor is a public limited company specialized in business and market

development for medical devices, equipment and disposals. Both the parties

entered into a non-exclusive distribution agreement effective from 25.04.2015

until 28.04.2017 whereby the Corporate Debtor was appointed as non-

exclusive distributor for sale of the operational creditor’s products, in parts of

eastern and north eastern India including, inter alia, West Bengal, Orissa,

Jharkhand and Bihar.

3.

Shorn of unnecessary details, the Appellant served a demand notice

under Section 8 of the Code on 04.01.2020 to which reply was filed on

17.01.2020 but it is stated that since there was some technical defect in the

said notice, therefore, it was withdrawn on the same date. Thereafter, a fresh

notice under Section 8 of the Code was issued on 19.06.2020 to which reply

was filed on 01.07.2020. It is stated that with the notice issued under Section

8 of the Code, the Appellant attached all the invoices which had remained

unpaid, on the basis of which the amount in question was demanded. It was

also submitted that the Respondent did not contest the invoices in their reply

to the notice as neither it has been said that the invoices are fake or the money

against the invoices has already been paid.

4.

Be that as it may, after notice was issued under Section 8 of the Code,

the application under Section 9 was filed on 03.10.2020 to which reply was

filed on 09.04.2021. The Adjudicating Authority, vide its impugned order

dated 23.03.2023, dismissed the application only taking into consideration

the issue regarding the blank cheques no. 002039, 002033 and 003285 and

also the alleged undertaking purported to have been given by Rakesh Mehta

which was not accepted, on the ground that, it has not been signed by him

rather it was signed by Jyotsana Mehta.

5.

Counsel for the Appellant has vehemently argued that for the purpose

of consideration of the application filed under Section 9, it is imperative on

the part of the Adjudicating Authority to take into consideration the invoices

attached with the application which is stated to have been remained unpaid.

It is submitted that this aspect of the matter has not been dealt with at all by

the Adjudicating Authority. During the course of hearing, we have

categorically asked Counsel for the Respondent about this fact which he could

not deny that there is no finding recorded by the Adjudicating Authority about

the invoices which were not only made part of the notice issued under Section

8 of the Code but also relied upon by the Appellant in the application filed

under Section 9 of the Code.

6.

Thus, in the aforesaid facts and circumstances, it would be just and

expedient if the impugned order is set aside and the matter is remanded back,

to take into consideration the invoices relied upon by the Appellant and pass

an appropriate order in accordance with law after affording an opportunity to

the parties.

7.

Consequently, the present appeal is allowed and the impugned order is

set aside. The matter is remanded back to the Adjudicating Authority to decide

it again after recording categoric finding about the import of the invoices

which are stated to have been relied