National Company Law Appellate Tribunal
Sherbahadur D. Yadav vs Rohan Dyes And Intermediates Limited on 13 January, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH,
NEW DELHI
Company Appeal (AT) (Ins) No. 472 of 2021
IN THE MATTER OF:
Sherbahadur D.Yadav ...Appellant
Vs.
M/s. Rohan Dyes and Intermediates Ltd. ...Respondent
Present:
For Appellant: Mr. Sandeep Bajaj, Mr. Asav Rajan, Advocates
For Respondent: Ms. Noopur K.Dalal, Advocate
ORDER
(Through Virtual Mode) 13.01.2022: Heard Learned Counsel for the Appellant.
This Appeal has been filed against the judgement and order dated 13.05.2021 of the Adjudicating Authority by which application u/s 9 of the Code filed by the Appellant has been rejected on the ground of 'pre-existing' dispute.
2. The Appellant's case is that he was awarded a fabrication work by the 'Corporate Debtor' in the year 2017-2018 and pursuant to such work invoices totalling Rs. 32,10,781.50/- was issued and legal notice was issued on 17.03.2018 by the Appellant and the Appellant also filed a criminal complaint against the 'Corporate Debtor' on 02.04.2018 at Vatva Police Station, Company Appeal (AT) (Ins) No. 472 of 2021 1 Ahmedabad, Gujarat for criminal breach of trust, cheating and criminal intimidation under the 'Indian Penal Code'.
3. It is further submitted that Respondent also filed a police complaint on 11.12.2018. Demand Notice was issued u/s 8 and thereafter on 31.07.2019. An application was filed for non- payment of 'operational debt' amounting to Rs, 17,83,642/- which has been rejected by the Adjudicating Authority.
4. Learned Counsel for the Appellant submits that the police complaint which was filed on 11.12.2018 and 28.08.2019 at Vatva Police Station and on 20.08.2019 at Khambat Police Station cannot be relied for raising a pre-existing dispute so as to place reliance on, by the Adjudicating Authority. It is submitted that only part payment of invoices were made and when the payments were not made, the Appellant filed a police complaint complaining hob-payments and making allegations of criminal breach of trust, cheating and intimidation.
5. Learned Counsel for the Appellant has referred to all the three police complaints which have been filed before us.
6. We have considered the submissions of the Learned Counsel for the Appellant and perused the records.
Company Appeal (AT) (Ins) No. 472 of 2021 2
7. The Adjudicating Authority has observed the fact that the police complaints were registered by the Appellant and cross- complaints were also registered by the 'Corporate Debtor' is an evidence of facts, that dispute has arisen between the parties which was pending investigation by the police. In the complaint which was filed by the 'Corporate Debtor' in the Police Station at Vatva which has been brought on record by the Appellant at pages 248-249 in paragraphs 4, 5 and 6, the following allegations were made:-
"4. On our repetitive demand for invoices, we were issued with wrong GST invoices amounting to Rs.
32,10,781/- without any detailed
particulars. The said amount was
inclusive of sham charges against the
work undertaken by other contractors.
5. The respondents inequitably started claiming payment for the work undertaken by the laborers of our factory in daily course of business. On putting forth such argument with the Company Appeal (AT) (Ins) No. 472 of 2021 3 respondents, we were told in a fit of rage that no such invoices except for the one previously issued will be provided against the work undertaken. Moreover, we were threatened to make such absurd payment lest be faced with dire consequences apropos false civil proceedings.
6. The respondents hence have falsely threatened for considering their demand and have gone to an extent of sending hooligans, additionally making false police complaint against our part thereby creating mental mayhem to us. Being mentally tired from incongruities on the part of the respondents, we have no other resort but to present this written complaint with your good office."
8. When the allegations against each other are serious allegations including allegations of offence against each other, we Company Appeal (AT) (Ins) No. 472 of 2021 4 are not convinced by the Appellant that police complaint do not evidence any dispute between the parties. It is to be noted that all the aforesaid complaints are much before initiation of proceedings u/s 9 by the Appellant. The Adjudicating Authority has not committed any error in relying of the facts and materials on record to come to the conclusion that there was pre-existing dispute between the parties.
9. We are of the view that IBC proceedings are not for the purposes of adjudicating such dispute between the parties and are not the recovery proceedings to recover the unpaid amount by the official creditor whose claim is disputed by the 'Corporate Debtor'.
We, thus, do not find any error in the order of the Adjudicating Authority, the appeal is dismissed.
[Justice Ashok Bhushan] Chairperson [Dr. Ashok Kumar Mishra] Member (Technical) ss/nn Company Appeal (AT) (Ins) No. 472 of 2021 5