NATIONAL COMPANY LAW APPELLATE TRIBUNAL

NEW DELHI

Company Appeal (AT) (Ins) No.1064 of 2020

[Arising out of Order dated 23.10.2020 passed by National Company Law

Tribunal, New Delhi Bench Court – VI in Company Petition No.(IB)-

908(ND)/2020]

IN THE MATTER OF:

Before NCLT

Before NCLAT

M/s Orator Marketing

Applicant/

Appellant

Pvt. Ltd.

Financial Creditor

Shop No.102-103,

1^st Floor,

Aditya Complex,

DDA Community Centre,

Sector 8, Rohini

New Delhi – 110085

Vs.

M/s Samtex Desinz Pvt.

Respondent/

Respondent

Ltd.,

Corporate Debtor

122 Tribhuwan Complex

Ishwar Nagar,

Mathura Road,

New Delhi

For Appellant:

Mr. Abhijeet Sinha and Mr. Lzafeer Ahmed,

Advocates

For Respondent:

Mr. Anirudh Deshmukh, Advocate

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Company Appeal (AT) (Ins) No.1064 of 2020

J U D G E M E N T

(08^th March, 2021)

A.I.S. Cheema, J. :

1.

This Appeal is filed by the Appellant – M/s. Orator Marketing Pvt.

Ltd. claiming to be Financial Creditor against Impugned Order dated 23^rd

October, 2020 passed by the Adjudicating Authority (National Company

Law Tribunal, New Delhi Bench Court – VI) in Company Petition No.(IB)-

908(ND)/2020. The Application was filed under Section 7 of Insolvency and

Bankruptcy Code, 2016 (IBC - in short) seeking Corporate Insolvency

Resolution Process against Respondent Company - M/s Samtex Desinz

Pvt. Ltd. (Corporate Debtor). The Appellant claimed that there was default

in payment of debt of Rs.1,56,89,740/- on the part of the Corporate

Debtor. The Appellant claimed to be assignee of the original lender to the

Corporate Debtor.

2.

The Appeal claims and it is argued that the Respondent - M/s

Samtex Desinz Pvt. Ltd. was incorporated in 2018 consequent to

four individuals – 1) Sameer Bharadwaj, 2) P.K. Bharadwaj, 3) Sumeer

Duggal and 4) Sharad Duggal purchasing the Respondent which was at

that time a sole proprietor. The Respondent was then incorporated as a

Company. To meet the business expenses, Respondent had raised a loan

of Rs.14 Crores from M/s. Tata Capital Financial Services Ltd. That loan

was a secured loan and the Respondent had mortgaged land, building, etc.

in favour of M/s. Tata Capital Financial Services Ltd. Still the Respondent

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Company Appeal (AT) (Ins) No.1064 of 2020

– Corporate Debtor required more funds for day to day working and

development of business. Respondent approached open market and

financial lenders but could not get additional debt. It is stated that in such

circumstances, to ensure continued development of the business of

Corporate Debtor, Mr. Sameer Bhardwaj – then Director of the

Respondent, through sister concern – M/s. Sameer Sales Pvt. Ltd.

advanced Rs.1.60 Crores to the Respondent. In this regard, Agreement

dated 20^th January, 2019 (Annexure A-2 – Page 32) was executed. The

amount was repayable in two years from date of Agreement i.e. on or after

1^st February, 2020 upon demand by the lender. Appellant claims that the

said loan reflected in the Balance Sheet of the Corporate Debtor. The

Corporate Debtor made some payments but still Rs.1.56 Crores were due.

3.

The Appeal states that subsequently M/s. Sameer Sales Pvt. Ltd. (the

original lender) assigned the outstanding loan to the Appellant. The

Respondent acknowledged the fact that the loan has been assigned. The

Appellant claims that as the debt was due, Appellant on 3^rd February, 2020

sent Notice (Annexure A-9 – Page 51) to the Respondent and demanded

payment of the debt. Yet another Notice was sent on 14^th February, 2020

(Annexure A-10 – Page 52) making demand of the outstanding debt. The

Respondent replied on 18^th February, 2020 (Annexure A-11 – Page 53)

referring to market conditions and labour problem and sought time to

make the payment in instalments.

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Company Appeal (AT) (Ins) No.1064 of 2020

4.

The Appellant subsequently fi