National Company Law Appellate Tribunal
P. Sikkandar vs Jiangsu Yinhe Electronics Co on 1 September, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
CHENNAI BENCH
Company Appeal (AT) (CH) (Ins) No. 311 of 2022
[Arising out of Order dated 22.07.2022 passed by the Adjudicating
Authority/National Company Law Tribunal, Chennai Bench in CP
(IB)/290/(CHE)/2021.]
IN THE MATTER OF:
1. P. Sikkandar
(Suspended Director, Madurai Krishna
Network Pvt. Ltd.)
Resident of 1, Malligai Malar Street,
Bharathi Nagar, Krishna Puram Colony,
Madurai, Tamil Nadu-625014 ...Appellant No. 1
2. S. Mohanna Prasath
(Suspended Director, Madurai Krishna
Network Pvt. Ltd.)
Resident of 1, Malligai Malar Street,
Bharathi Nagar, Krishna Puram Colony,
Madurai, Tamil Nadu-625014 ...Appellant No. 2
3. S. Poorna Prasath
Resident of 1, Malligai Malar Street,
Bharathi Nagar, Krishna Puram Colony,
Madurai, Tamil Nadu-625014 ...Appellant No. 3
Versus
1. Jiangsu Yinhe Electronics Corporation
Limited
Through its Authorized representative in
India
Mr. M. Gopirajan, S/o Muthuraman,
Residing at-
3/4 NSC Bose Nagar, Near Alex Nagar A
Colony,
Madhavaram, Tiruvallur-600051. ...Respondent No. 1
2.
Madurai Krishna Network Private Limited
Through the Interim Resolution
Professional
Ms. Asha Rathod,
No. 15, P.V. Koil Street, Royapuram,
Chennai, Tamil Nadu- 600013 ...Respondent No.2
Company Appeal (AT) (CH) (Ins) No. 311 of 2022 1 of 18
Present:
For Appellants : Mr. Antony R. Julian, Advocate
For Respondents : Mr. T.V. Sureshkumar, Advocate
J U D G M E N T
(Virtual Mode) NARESH SALECHA, MEMBER (TECHNICAL) The Present Appeal is filed against the 'impugned order' dated 22.07.2022 passed in CP (IB)/ 290/ (CHE)/2021 by the 'Adjudicating Authority', 'National Company Law Tribunal, Chennai Bench' (in short 'AA'), whereby, the AA admitted Application under Section 9 of the Insolvency & Bankruptcy Code, 2016 (in short 'IBC') r/w Rule 6 of the Insolvency & Bankruptcy (Application to AA Rules, 2016) against 'Madurai Krishna Network Private Limited/Corporate Debtor' (in short 'CD'). AA appointed 'Ms. Asha Rathod' as 'Insolvency Resolution Professional'. Aggrieved by this Impugned Order Appellant has filed this Instant Appeal.
Brief Facts:
2. 'CD' is a licensed local cable operator distributing cable, TV signals through fibre net and set top boxes (in short STBs) in Tamil Nadu. CD also operates three TV channels- MK TV, MK Six & MK Tunes.
'Jiangsu Yinhe Electronics Corporation Limited is Operational Creditor' (in short OC) engaged in business of manufacturing and supply various electronic components including digital TV intelligent terminal equipment fields, e-component etc. having Registered Office in China and is represented by Authorised Signatory 'M. Gopirajan' based in Tiruvallur, Tamil Nadu. Company Appeal (AT) (CH) (Ins) No. 311 of 2022 2 of 18 'Akshaya Digital Cable Vision Pvt. Ltd.' (in short Akshaya) is a digital cable television network distributor and is operating in same industry as 'CD. In November, 2017 two shareholders of CD- 'Mr. S. Mohanna Prasath' (Appellant No. 2 herein) and 'Mr. S Poorna Prasath' acquired collectively 26% of Equity Shareholding in 'Akshaya'.
Memorandum of Understanding (in short MoU) was entered into between 'CD' and 'Akshaya' on 19.09.2018. The main purpose of this MoU was to precure 66,000 STBs from OC on agreed upon terms and conditions between 'CD' & 'Akshaya'.
3. 'CD' placed a purchase order dated 01.10.2018 on OC for supply of 66,000 STBs for USD 6,38,157 and based on RBI Foreign Exchange Rate notified as on 21.08.2021 amount in INR was Rs. 4,74,01,312/- towards STBs supplied by OC. As per payment terms of said Purchase order which was duly signed by Authorised Signatory of CD, 15% of the total purchase order value was to be paid as an advance and the balance 85% payment was to be paid within 180 days from the date of delivery. OC based on the Purchase order had supplied 66,000 STBs in three shipments and the same had been delivered to the CD through various invoices and the details of the same are as follows:-
Invoice Number Invoice Amount (in Date of Due Date
Date USD) Delivery
VO-190204001 18.02.2019 80,500.00 05.03.2019 01.09.2019
VO-190204002 18.02.2019 80,500.00 05.03.2019 01.09.2019
VO-190204003 18.02.2019 91,310.00 05.03.2019 01.09.2019
VO-1900407001 15.05.2019 1,26,384.60 03.06.2019 30.11.2019
Company Appeal (AT) (CH) (Ins) No. 311 of 2022 3 of 18
VO-1900407002 15.05.2019 1,26,612.32 03.06.2019 30.11.2019
VO-190617001 18.06.2019 1,26,500.00 11.07.2019 07.01.2020
VO-190617002 18.06.2019 1,26,500.00 11.07.2019 07.01.2020
Total 7,58,307.92
4. CD in accordance with the payment terms as stipulated in the purchase order had paid only the advance amount of USD 1,20,150 out of the total USD 7,58,307 and an amount of USD 638,157 remained to be paid by the CD within a period of 180 days from the date of delivery. As per the terms of the purchase order, the OC should have made payment towards the STBs withing a period of 180 days from the date of delivery as per OC. Therefore, the dates from which the debt fell due were 01.09.2019, 30.11.2019 and 07.01.2020 as per OC.
5. OC in accordance with Section 8(1) of the IBC through its legal counsel issued a Demand Notice dated 23.08.2021 in form 3 along with the invoices and other document demanding payment to the tune of USD 6,38,157 as due and payable towards the STBs supplied by the OC. The same was duly delivered to the 'CD' on 25.08.2021.
6. 'CD' in its 'Reply' dated 03.09.2021 to the demand notice has allegedly acknowledged the receipt of STBs from OC and outstanding payment of USD 6,38,157 but raised issues regarding non-payment by Akshaya as well as alleged pre-existing disputes.
7. OC, however, stated that the 'CD' on receipt of demand notice had neither provided any proof of payment nor provided any proof for pre-existing Company Appeal (AT) (CH) (Ins) No. 311 of 2022 4 of 18 dispute towards the goods supplied but in order to escape from the clutches of IBC hastily provided sham reply under the guise of raising pre-existing dispute.
8. Hon'ble AA vide Impugned Order dated 22.07.2022 admitted Application under Section 9 of the IBC r/w Rule 6 of the Insolvency & Bankruptcy (Application to AA Rules, 2016) against CD. Aggrieved by this Impugned Order, Appellant has filed this Instant Appeal. Appellant's Submissions:
9. Learned Counsel for the three Appellants, out of whom two Appellant i.e. Appellant No. 1 & Appellant No. 2 were Suspended Director of CD, gave the facts of the case and described relationship between CD & OC and also relationship between CD & Akshaya. Learned Counsel for Appellants assailed the Impugned Order dated 22.07.2022 and stated that CD was merely acting as an agent for Akshaya and procured the 66,000 STBs on behalf of Akshaya. Learned Counsel took the plea that CD was only acting as a procuring agent for Akshaya, earning a 3% commission on the value of the Purchase Order. This transaction structure was adopted as Akshaya did not enjoy sufficient credit line. An MOU dated 19th September 2018 was entered into between CD and Akshaya. Learned Counsel alleged that OC was in direct contact with Akshaya. Learned Counsel stated that OC was aware that CD was merely an agent for Akshaya and it is a well-established principle of law i.e. Agent cannot be held liable for the Principal's (Akshaya) failure to perform its obligations.
10. Learned Counsel briefed that relationship between CD and Akshaya was based on MoU and CD was only procuring STBs from OC on Akshaya's Company Appeal (AT) (CH) (Ins) No. 311 of 2022 5 of 18 behalf at 3% commission. Since, Akshaya was not making the payments as per MoU to CD which compelled CD to default payment to OC and as explained earlier CD was merely acting as agent on behalf of the main principal i.e. Akshaya and cannot be held responsible for payment for STBs supplied to Akshaya, admittedly, through CD by OC. Learned Counsel stated that due to failure of Akshaya to make payments for STBs supplied, CD sent a demand notice dated 23.11.2020 to Akshaya and subsequently an Application was made by 'CD' before the AA in December 2020 (vide CP/122/IB/CB/2020) was filed against Akshaya under Section 9 of the Code for dues under the MoU. CD also separately filed an Application (vide CP/121/IB/CB/2020) against Akshaya under Section 7 of the code for non- repayment of the loan of Rs. 2 crores.
11. However, subsequently the 'Joint Memo of Compromise' was signed between 'CD' and 'Akshaya' according to which dues from Akshaya to CD at the time of MoU exceeded Rs. 7 Crores. Learned Counsel alleged that the said MoU was signed under duress and was not commercially prudent settlement. Learned Counsel, however, also mentioned that the said MoU cannot be relied upon by the OC since MoU was between the CD and Akshaya and OC was not a signatory to the said document and cannot claim benefit under it.
12. According to Learned Counsel, the AA was required to determine merely whether pre-existing dispute between the parties existed prior to Form 3 notice. Once that has been established by the CD with adequate evidence, the application u/s 9 of the IBC should have been dismissed. Learned Counsel informed that STBs were sent in three separate shipments on February 2019, Company Appeal (AT) (CH) (Ins) No. 311 of 2022 6 of 18 May 2019 and June 2019 and after the 1st Shipment arrived, CD specifically advised OC to intimate him before the next shipment. On being informed that the STBs were ready to be shipped on 07.05.2019, CD specifically advised OC to hold the order. Learned Counsel alleged that in spite of their clear instructions, CD came to know that the remaining two shipments had arrived, and that the customs duty had been paid by Akshaya. When the OC started asking for payments from the CD, the CD replied OC stating that OC payments need to follow from Akshaya directly. AS per Learned Counsel this clearly establishes that the CD always denied his liability to pay the OC. Learned Counsel brought to the notice that CD had written several emails prior to receipt of Form 3 Notice sent by the OC establishing pre-existing dispute.
13. Learned Counsel cited the case of Mobilox Innovations Pvt. Ltd. v Kirusa Software Pvt. Ltd. wherein the Hon'ble Supreme Court of India held that under section 9(5)(ii)(d) it is enough if the OC receives a notice of dispute which predates the Form 3 notice. The Hon'ble Supreme Court of India further held that the Court (NCLT) under section 9 could not assess the merits of the dispute raised - as long as the defence was not a patently feeble legal argument or an assertion of facts unsupported by evidence, the NCLT has to dismiss the application under section 9. Learned Counsel brought out that in the present case, the CD has produced adequate evidence in the form of emails showing that there was pre-existing dispute between the parties.
14. Learned Counsel emphasis that as per settled law, IBC cannot be used as recovery proceedings. Concluding his pleading Learned Counsel for the Company Appeal (AT) (CH) (Ins) No. 311 of 2022 7 of 18 Appellants prayed that the present appeal be allowed and the impugned order passed by the Hon'ble NCLT in CP/IB/CHE/290/2021 dated 22nd July 2022 be set aside.
Respondent's Submissions:
15. Learned Counsel for the Respondent No. 1 (OC) stated that the CD had issued Purchase order for procuring 66,000 STBs who and OC in turn had supplied the same to the CD in three shipments and CD had taken delivery of the said 66,000 STBs by filing the necessary Bill of Entries with the Customs and cleared the goods in terms of section 46 (1) of the Customs Act 1962, "the importer of any goods, other than goods intended for transit or trans-shipment, should make entry thereof by presenting (Electronically) (on the Customs automated systems) to the proper officer, a Bill of Entry for Home Consumption or Warehousing.
16. According to Learned Counsel, CD subsequently sold STBs to Akshaya with a commission of 3%.
17. CD due to default in payment from Akshaya, initiated 'CIRP' under IBC against the 'Akshaya' before the AA in CP(1B)/122/CHE/2021.
18. Learned Counsel also alleged that CD had also received the pending dues to the tune of Rs. 5.54 Crores from Akshaya.
19. As per Learned Counsel the AA vide its 'impugned order' dated 19.04.2022 had taken on record the said 'Compromise Memo' in the presence of the counsel for the CD and the said case was dismissed for non- prosecution.
Company Appeal (AT) (CH) (Ins) No. 311 of 2022 8 of 18
20. Learned Counsel stated that the Application filed under Section 9 of the IBC, Hon'ble AA vide Order dated 22.07.2022 admitted the Application and initiated 'CIRP' against 'CD' in accordance with the provisions of the IBC.
21. Learned Counsel vehemently opposed about any so-called existence of pre-existing. Learned Counsel brought out that the Appellants in the Appeal filed before this Hon'ble Tribunal had challenged the Impugned Order mainly on the ground that prior to issuance of the Demand Notice, pre-existing dispute between the parties was in existence.
Learned Counsel mentioned that the AA in the Impugned Order had already taken note of these alleged pre-existing disputes pleas and after due deliberation, AA dismissed the contentions of CD about any pre-existing dispute between the parties.
22. Learned Counsel assailed that the Appellants had projected few mail communications as proof of pre-existing dispute between the parties including allegation that despite instructions through email dated 07.05.2019 of the CD not to ship the second shipment, the OC had shipped the same. Learned Counsel stated that CD in its reply to the demand notice had admitted that the entire shipment was delivered to the CD and subsequently sold the same to Akshaya and received money. Therefore, it is very clear that subsequent to the aforesaid mail, the CD had taken delivery and possession of the STBs and also has resold the same to Akshaya and hence the mail which was being projected as pre-existing dispute had no relevance. Beyond any doubt the STBs supplied by the OC were accepted by the CD and allegations made by the Appellants that CD had merely acted as an agent of Company Appeal (AT) (CH) (Ins) No. 311 of 2022 9 of 18 principal i.e. Akshaya and therefore it is not liable to make payment towards the outstanding dues to the OC are far from truth.
23. Learned Counsel also mentioned that 'OC' is not a party to the MoU executed between CD and Akshaya and also in addition, the OC vide its mail dated 08.10.2020 had clearly intimated CD that the payment dues were to be settled by the CD only and it did not want to get involve into the transaction between the CD and Akshaya.
24. Learned Counsel further mentioned that in the instant case, the 'CD' had sent a reply dated 03.09.2021 for the demand notice issued by the 'OC' and in the said reply, 'CD' had admitted the claim of 'OC' and had stated that it would remit the outstanding dues payable to the 'OC' as soon as it receives the amount from its buyer i.e. 'Akshaya'.
25. Learned Counsel further submitted that the 'OC' that 'CD' had admitted its liability on various occasions but in order to evade the CIRP under IBC, CD had projected few old e-mails to establish co called pre-existing dispute. However, on account of CD's admission of liability in various e-mails proved beyond doubt there was no pre-existing dispute between the parties. Learned Counsel further stated that the Appellants in Application had listed out various instances of litigations between the 'CD' and 'Akashya'. Learned Counsel emphasised that said litigation between 'CD' and 'Akshaya' had no nexus to the outstanding amount which is due and payable to 'OC'. As per Learned Counsel further stated that the AA in the 'impugned order' had given correct ruling that the third party disputes cannot be taken as dispute under Section 5(6) of the IBC, 2016 and the same is in line with the earlier decision Company Appeal (AT) (CH) (Ins) No. 311 of 2022 10 of 18 of this Hon'ble Tribunal in the matter of Chetan Sharma Vs. Jai Lakshmi Solvents [Company Appeal (AT) (Insolvency) No.66, 67, 68, 70 of 2019].
26. Learned Counsel reiterated that the Appellants had approached this Hon'ble Tribunal seeking to set aside the 'impugned order' passed by the AA on the grounds of existence of dispute prior to issuance of demand notice. The mail dated 07.05.2019 was being projected as the dispute between the parties. However, in their reply to the demand notice they had without any reference to the same had admitted debt.
27. Concluding his pleadings, the Learned Counsel for Respondent No. 1 requested to dismiss the Appeal filed by the 'Appellant' and uphold the 'impugned order' dated 22.07.2022.
Findings
28. Heard Learned Counsel for the Parties and also perused record available along with Written Submissions by Parties. Several issues have been raised in the Appeal which are required to be deliberated upon before coming to final conclusion. Based on Appeal, averments made by both Learned Counsel, following issues needs to be decided:-
(i) Whether there was a debt due of which default was committed by the Corporate Debtor entitling the Operational Creditor to file an Application under Section 9 of the IBC?
(ii) Whether there was a pre-existing dispute between the parties prior to issuance of Demand Notice under Section 8 of the IBC dated 23.08.2021.
29. It will be necessary for us to take issue by issue discussion and we shall proceed accordingly in subsequent discussion Company Appeal (AT) (CH) (Ins) No. 311 of 2022 11 of 18 Issue No. (i) Whether there was a debt due of which default was committed by the Corporate Debtor entitling the Operational Creditor to file an Application under Section 9 of the IBC?
29(a). To understand whether in the present appeal any debt existed at all and if default took place w.r.t. said debt, we need to see the exact definitions of these in the IBC.
The debt has been defined in Section 3 (11) of IBC which is as under:-
"3(11). "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt;"
Since, the term claim is mentioned in above definition of debt, we need to refer to definition of claim under Section 3(6) of IBC which as under:-
"3(6). "claim" means-
(a) A right to payment, whether or not such right is reduced to judgment, fixed, disputed, undisputed, legal, equitable, secured or unsecured;
(b) Right to remedy for breach of contract under any law for the time being in force, if such breach gives rise to a right to payment, whether or not such right is reduced to judgment, fixed, matured, unmatured, disputed, undisputed, secured or unsecured;"
The other relevant definition of IBC with reference to this Appeal are 'Operational Debt' and 'Operational Creditor' which are as under:-
"5(21). operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the [payment] of Company Appeal (AT) (CH) (Ins) No. 311 of 2022 12 of 18 dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority;
"5(20). "operational creditors" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred;"
Similarly, default is also defined under Section 3(12) of IBC which as under:-
"3(12). "default" means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not [paid] by the debtor or the corporate debtor, as the case may be; 29(b). Section 9 of the IBC impowers OC to file an Application to initiate CIRP against CD subject to full filling certain requirement. There should be debt of more than Rs. 1 Crore which should be due for payment and which should have been defaulted by CD and no pre-existing disputes exists prior to issue of Demand Notice in Form 3.
29(c). We have noted that, CD had placed a purchase order on 01.10.2018 on OC for supply of 66,000 STBs for consideration of USD 6,38,157. As per purchase order 15% of the total purchase order value was to be paid as in advance and remaining outstanding 85% cost to be paid within 180 days from the date of delivery. It has been established that in three shipments all 66,000 STBs were supplied and received by CD. It is also admitted fact that CD has filed necessary bill of entries with customs and took the delivery of Company Appeal (AT) (CH) (Ins) No. 311 of 2022 13 of 18 STBs which establishes receipt of STBs and its liability towards payment to OC. CD has brought out that he was merely acting as an agent on behalf of his principal Akshaya and was entitled for 3% commission. CD taken the plea that as an agent he has no responsibility to pay to OC and it is responsibility of Akshaya, on whose behalf 66,000 STBs were procured from OC, to make payment to OC. CD alleged that since Akshaya did not make payment of CD he in turn could not make payments to OC. 29(d). From the various records made available as well as based on averments made by Counsel for the Parties, it is clear that the contact was entered directly between OC & CD and it was responsibility of CD to make payment to OC. At this stage, CD cannot take shelter of MoU entered into between CD & Akshaya, which in any case, was an independent MoU or agreement. Admittedly, OC was not a direct party to said MoU. Merely fact that CD in turn had supplied 66,000 STBs to Akshaya as an agent, does not absolve him of his liability to make the payments as per contract in form of purchase order. The receipt of quantity i.e 66,000 STBs, quality or agreed upon rates were never any point of dispute between OC and CD. 29(e). We, therefore, are in agreement with Hon'ble AA in holding that debt existed which were due to be paid and default took place. We also observe that proper demand notice in Form 3 was issued fulfilling the requirement as stipulated in IBC. We do not find any error in the Impugned Order on this issue.
Company Appeal (AT) (CH) (Ins) No. 311 of 2022 14 of 18
30. Issue No. (ii) Whether there was a pre-existing dispute between the parties prior to issuance of Demand Notice under Section 8 of the IBC dated 23.08.2021.
30(a). CD has taken a plea that there was pre-existing dispute and as per settled law and based on catena of Judgments of the Hon'ble Supreme Court of India including Mobilox Innovation Pvt. Ltd. (Supra) that Hon'ble AA is only required to look into, if any, pre-existing dispute occurred prior to issue of demand notice in Form 3. If this condition is satisfied then Hon'ble AA is bound to dismiss the Application filed under Section 9 of the IBC. CD alleged that this adequate material to demonstrate that he had written to OC not to supply after first shipment and also that OC should directly pursue with Akshaya to take the payment. He alleged that although he has signed bill of entries to satisfy Customs Act, it was Akshaya who paid the Custom Duty. CD reiterated that he was merely acting as an agent on behalf of Akshaya which was evident from various correspondence exchanged between him and OC and therefore he was not accountable for default of Akshaya. As per CD, all such evidence clearly establishes that there was distinct pre-existing dispute between CD and OC and Learned AA ought to have dismiss OC's application under Section 9 of IBC.
30(b) We have also heard Learned Counsel for OC who has denied any pre- existing dispute between OC and CD and emphasised that various documents made available it was beyond doubt that the contact between OC and CD was supply of 66,000 STBs on agreed price. OC contended that all 66,000 STBs for indeed supply to CD and CD has acknowledged the fact in bill of entries Company Appeal (AT) (CH) (Ins) No. 311 of 2022 15 of 18 filed in customs. According to OC, there were dispute between CD & Akshaya for which CD had filed Section 9 Application before the AA after issuing Form 3 Demand Notice on 23.11.2020. However, based on compromise memo dated 24.03.2022 between CD and Akshaya, AA dismissed CD's Section 9 Application against Akshaya for want of prosecution. 30(c) We take note of all material available and averments made by Counsel of both the Parties. We note that there are two distinct contracts entered by CD i.e. one with OC, whereby, CD was to receive 66,000 STBs from OC and Second Contract with Akshaya to whom such STBs were to be supplied admittedly at 3% commission. Since, both are separate commercial transactions, the rights and liabilities are distinct of both contract and cannot be intermingled. We observed that at one hand CD has initiated Section 9 Application against Akshaya and later based on compromise memo was filed before the AA and claimed outstanding dues from Akshaya. Admittedly he has received certain consideration for supply of STBs to Akshaya but has raised
31. We also observe that AA has correctly pointed out clause 9 of 'compromise memo' between 'CD' & 'Akshaya' dated 24.03.2022 to allay any doubt about alleged pre-existing dispute. The clause 9 is as herein under:-
"The Creditor (Corporate Debtor herein), Corporate Debtor (Akashaya), Confirming Party 1 and Confirming Party 2 expressly agree that the Creditor shall take it upon itself to settle within 3 months of signing this Joint memorandum of Compromise, the claim of Jiangsu Yinhe Electronics Co. Ltd., (Chinese Supplier) in respect of the aforesaid 66,160 HD digital Set Top Boxes ultimately Company Appeal (AT) (CH) (Ins) No. 311 of 2022 16 of 18 purchased by the Corporate Debtor from the Creditor which forms basis for the claim made under C.P. No. 122 (IB)/CB/2020. It is further expressively admitted by the creditor that CP (IB) 290 of 2021 has been filed by the Chinese Supplier against the Creditor before this Hon'ble Tribunal towards claims relating to the same transaction being sale of the aforesaid 66,160 HD digital Set Top Boxes which ultimately was purchased by the Corporate Debtor from the Creditor and that on payment of the sums mentioned under Paragraph 4 & 5, the Creditor shall undertake to indemnify the Corporate Debtor of any and/or all claims, actions, losses, etc. that shall arise as a consequence of non-fulfilment of obligations by the Creditor by not clearing the dues with the Chinese Supplier under the terms detailed under this paragraph."
(emphasis supplied)
32. From above, it is abundantly clear that there was clear contract between 'CD' and 'OC' as well as 'CD' and 'Akshaya' and it is squarely responsibility of CD towards its obligation to OC. Correspondence between 'CD' and 'OC' as produced by both 'CD' and 'OC' do not establish any pre- existing dispute. Hence, AA rightly taken decision in this regard and we do not find any error in the 'impugned order' for this issue.
33. Based on the above discussions and reasons, this `Tribunal', is of the considered view that no ground is made out for any interference by this `Tribunal' with the `impugned order' dated 22.07.2022 in CP (IB)/290/(CHE)/2021, passed by the `Adjudicating Authority' (`National Company Law Tribunal'), Chennai Bench, and accordingly, dismisses the Company Appeal (AT) (CH) (Ins) No. 311 of 2022 17 of 18 instant Comp. App (AT) (CH) (Ins) No. 311 of 2022. No costs. The connected pending Interlocutory Applications, if any, are Closed.
[Justice M. Venugopal] Member (Judicial) [Naresh Salecha] Member (Technical) 1st September, 2022 Simran Company Appeal (AT) (CH) (Ins) No. 311 of 2022 18 of 18