National Company Law Appellate Tribunal
India Medtronic Private Limited vs Healthcare Associates Private Limited on 5 January, 2024
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH,
NEW DELHI
Comp. App. (AT) (Ins) No. 516 of 2023 & I.A. No. 1682, 1683 of 2023
IN THE MATTER OF:
India Medtronic Pvt. Ltd. ...Appellant
Versus
Healthcare Associates Pvt. Ltd. ...Respondent
Present:
For Appellant : Mr. Anupam Chaudhary, Debolina Roy, Advocates
For Respondent : Mr. Akash Agarwal, Ashish Chaudhary, Advocates
With
Comp. App. (AT) (Ins) No. 515 of 2023 & I.A. No. 1679, 1680 of 2023
IN THE MATTER OF:
India Medtronic Pvt. Ltd. ...Appellant
Versus
Healthcare Associates Pvt. Ltd. ...Respondent
Present:
For Appellant : Mr. Anupam Chaudhary, Debolina Roy, Advocates
For Respondent : Mr. Akash Agarwal, Ashish Chaudhary, Advocates
ORDER
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filed on 17.01.2020 but it is stated that since there was some technical defect in the said notice, therefore, it was withdrawn on the same date.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 upon by the Appellant and were not discussed in the impugned order. The parties are directed to appear before the Adjudicating Authority on 22nd January, 2024.
8. It is needless to mention that the Respondent shall have liberty to raise all the contentions in respect of the admission of the application filed under Section 9 of the Code and the Adjudicating Authority shall decide the lis between the parties without being influenced with any observation made hereinabove.
Comp. App. (AT) (Ins) No. 516 of 2023 This appeal is directed against the order dated 23.03.2023. Counsel for the Appellant has fairly conceded that the matter is still pending before the Adjudicating Authority. In such circumstances, we are of the considered opinion that the present appeal is premature as no final order has been passed as yet. Hence, this appeal is hereby dismissed as premature.
[Justice Rakesh Kumar Jain] Member (Judicial) [Mr. Naresh Salecha] Member (Technical) Sc/rr