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Judgment
O R D E R
15.07.2024: Heard counsel for the appellant as well as respondent.
This appeal has been filed against the order passed by Adjudicating Authority dated 05.03.2024 by which Section 9 application filed by the appellant has been rejected. Appellant filed the Section 9 application claiming the amount in default Rs.2,16,17,430/- w.e.f. 14.07.2017 appellant case is that he supplied jute to the corporate debtor and the amount is unpaid amount from the corporate debtor. The corporate debtor filed a reply to the Section 9 application and came with a case that on 17.07.2017 a police complaint was filed by the corporate debtor against the operational creditor and his close Mehboob Hassan and thereafter on 20.07.2017 a settlement agreement was made between the parties under which it was decided to make payment of Rs. 66 Lacs in the instalments to the operational creditor and thereafter payments were made. It is submitted that for security of Rs.66 Lacs a post-dated cheque was also given under the settlement dated 20.07.2017. The corporate debtor submitted that amount have been paid nothing was due and the bills and confirmation of accounts all are fabricated and forged documents by the Operational Creditor. The Adjudicating Authority considered the case of the parties by impugned order has dismissed the application, aggrieved by the said order this appeal has been filed.
Learned counsel for the appellant submits that there was no proof of the settlement entered and on the basis of police complaint no FIR was registered and no case was registered against the appellant.
It is further submitted that an amount is still due and balance confirmation was brought on the record along with Rejoinder-Affidavit filed by the operational creditor which indicate that in the year 2020 the corporate debtor acknowledged the balance amount.
Learned counsel for the respondent refuting the submission submits that the amount and settlement was paid hence the post-dated cheque was never deposited had the amount was not paid post-dated cheque could have been deposited and further the balance confirmation is manufactured document which does not bear the seal of the corporate debtor and was not even referred to in Section 9 application.
We have considered submission of parties and is considered the materials on record. From own case of the appellant the amount due from 14.07.2017 the application Section 9 was filed by the appellant in the year 2022. The fact that for long five years no steps were taken by the operational creditor for the amount due clearly indicate that the defence taken by the corporate debtor that settlement was entered in 2017 under which amount were paid to the appellant has rightly been accepted by the Adjudicating Authority. There is no denial that the police complaint was filed the mere fact that FIR was not registered does not in any way militate against filing of the complaint.
Further, post-dated cheque of Rs. 66 Lacs is claim to be submitted which was never deposited also indicate that the amount was received hence the cheque was never deposited. The long silence for 5 years by the operational creditor in not claiming any due if according to the appellant dues were there speaks for itself.
We are of the view that no error has been committed by the Adjudicating Authority in rejecting Section 9 application in facts of the case. No merits in the appeal hence Appeal is dismissed.
However, this dismissal of Section 9 shall not preclude the appellant to take such proceedings as permissible in accordance the law.