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M/s Jitendra Impex Private Limited Versus Compack Enterprise India Private Limited
Court / Forum : National Company Law Appellate Tribunal Citation : Company Appeal (AT) (Insolvency) No. 1083 of 2019 Coram : Justice A.I.S. Cheema, Member (Judical), Justice A.B. Singh, Mr. Kanthi Narahari, Member (Technical) Subject : Section 61 of the Insolvency and Bankruptcy Code, 2016 Date of Decision : August 10, 2020
The Appellant, M/s Jitendra Impex Private Limited, has been dealing with the Respondent, Compack Enterprise India Private Limited, since the financial year 2013-14 on a regular basis and has been supplying paper and paper board to the Respondent based on written/verbal orders received from the Respondent from time to time.
Since the Respondent was regularly transacting with the Appellant, the Appellant as concession and as a matter of trust, was supplying goods to the Respondent on a credit of 30 (Thirty) days. The transaction was made in a running account in respect of business dealings with the Respondent and against which random payments had been made by the Respondent from time to time, adjustments in relation to which were made as per the First In and First Out (FIFO) method.
Somewhere in November, 2017, the Respondent started making miniscule, irregular and disproportionate payments to the Appellant against total outstanding invoice amounts.
The Respondent, however, vide its reply before the Ld. Adjudicating Authority, admitted a sum of Rs. 1,97,75,383 as due and payable by it and disputed the remaining amounts due.
Further, the Respondent took the following plea:
The Appellant was manipulating the bills raised.
Reference was made to letter dated September 13, 2018 wherein the Appellant mentioned 166 bills amounting to Rs. 3,52,07,252.62 and requested the Respondent to issue certificate that the Respondent has neither purchased these goods nor claimed CENVAT of Rs. 19,63,390.19 against these 166 bills.
The Appellant completely concealed the fact that the Appellant also issued credit notes in the financial years 2013-14,2014-15, 2015-16, 2016-17and 2017-18 to the Respondent towards special quantity discount on the basis of letters dated December 28, 2013 and April 16, 2016. Therefore, it does not lie in mouth of the Applicant to say that there is no agreement between the Appellant and the Respondent where the Appellant agreed to grant the Respondent special quantity discount.
The Ld. Adjudicating Authority held that the pleadings and the accounts filed by the parties it is concluded that both the parties have consistently approbated and reprobated throughout the proceedings. The Ld. Adjudicating Authority further appreciated the fact that the Respondent had admitted some of the amounts payable to the Appellant. However, while dismissing the Application, Ld. Adjudicating Authority held that the Appellant, due to its inconsistent conduct has been unable to establish that the amount being claimed by it was owed by the Respondent and that the Respondent has defaulted in the payment of the claimed amount.
Whether the Ld. National Company Law Tribunal, New Delhi had erroneously dismissed the petition filed by the Appellant vide the Impugned Order dated August 23, 2019?
TReference was made to the balance confirmation e-mail and the ledger attached in the e-mail, sent by the Appellant to the Respondent, requesting for a confirmation of balance in relation to the amounts due and payable. However, it was noted that as the Respondent did not raise any dispute in relation to the opening and the closing balance in the ledger, but in fact confirmed the amounts due and payable by it.
IFurther reference was made to the reply to the statutory notice in which the Respondent without indicating any pre-existing dispute, as an afterthought, without specifically pointing out, set up certain forged and fabricated credit notes purported to be issued by the Appellant. Significantly, the Respondent admitted that a sum of Rs. 22,56,833 is due and payable to the Appellant.
TThe Ld. Adjudicating Authority clearly erred in not appreciating the Appellant’s case that the Operational Debt is due and payable is completely consistent with the statement of accounts filed by the Appellant, which were never disputed / objected by the Respondent prior to receipt of statutory demand notice.
The Appeal was therefore allowed, and the matter was remitted back to the Ld. Adjudicating Authority for admitted the Application filed by the Appellant under Section 9 of the Insolvency and Bankruptcy Code, 2016.