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Judgment
O R D E R
20.07.2022: Heard Ld. Counsel for the Appellant. This Appeal has been filed against the order dated 19.04.2022 by which an application filed under Section 9 filed by the Appellant has been rejected.
The Appellant is a transporter who has been transporting the goods of the Corporate Debtor. The Appellant claiming an operational debt of Rs. 1,96,96,948/- has filed Section 9 application.
The case of the operational creditor was that it was in continuous supply of services of Corporate Debtor since 31.08.2015 to 31.01.2018 and several invoices were issued and payments have not been made. Consequently, Section 9 application was filed, notice under Section 8 although was sent on 01.12.2020, but no reply was submitted to the notice.
Adjudicating Authority (National Company Law Tribunal, Cuttack Bench) issued notice in the application. Reply was filed by the Corporate Debtor reflecting the claim of the operational creditor. In the Reply one of the pleas was taken that in fact as per the agreement between the parties on 27.01.2018 the operational creditors owns an amount of Rs. 78,75,157/- pursuant to an agreement entered on 27.01.2018, which has not even been mentioned in the application. In the reply other pleas were raised rejecting the claim of the Appellant of an operational debt.
Adjudicating Authority after hearing the parties rejected the application under Section 9. Following are the observations made by the Adjudicating Authority in para 10 of the impugned order:
“Heard the learned counsel/CS of both sides in detail. Material on record perused. The petitioner has failed to establish that it has transported 5,29,044,630 MT of ore, in respect of which amounts have been claimed. The Petitioner has filed to provide weighment chalans in respect of the aforesaid quantities it has allegedly transported. The respondent has provided the relevant details that amount of iron ore extracted by KCCL during the year 2015-16 is 5,19,817.100 MT through all the months and they had more than 15 transporters transporting the ore. Petitioner was one of the those transporters. Therefore, there is no justification that out of so many transporters just one transporter would have transported more ore than has been extracted during the period. Further, this Tribunal notes that an amount of Rs. 78,75,157 is owed by the Operational Creditor to the Respondent and the same is reflected by the Agreement dated 27.01.2018 signed and executed by the parties. Further, the respondent has been able to establish that there are significant inconsistencies in the ledger accounts maintained by the applicant wherein, it is found that several payments made by the Respondents to the applicant are not reflected in the latter’s book of accounts.”
Ld. Counsel for the Appellant challenging the order contends that the observation of the Adjudicating Authority noted that total extraction of ore was Rs. 5,19,817.100 MT and the transportation of iron ore claimed by Operational Creditor is Rs. 5,29,044,630 MT which is an impossibility, is not correct. She submitted that there were other inter-se transportation and the above fact was not conclusive to reject the claim of the Appellant.
It is further submitted that even after 27.01.2018 payments have been made by the Corporate Debtor which indicates that had the amount was due on the operational creditor, there was no occasion to make payment by the Corporate Debtor after 27.01.2018. It is further submitted that no Reply to notice under Section 8 was submitted.
We have considered submission of the Counsel for the Appellant and perused the record.
One of the reason given by the Adjudicating Authority in rejecting the claim of the Appellant was that Appellant claims to transport ore of Rs. 5,29,044,630 MT whereas total extraction during the year 2015-16 was Rs. 5,19,817.100 MT. It has also been noticed by the Adjudicating Authority that there were 15 transporters. Total list of ore transporter and material transported by them month wise was enclosed with the Reply which was filed by the Corporate Debtor.
We do not find that the above reasoning given by the Adjudicating Authority is either perverse or based on no material. Adjudicating Authority has considered the pleas of the parties and on basis of the materials on record has come to the said conclusion, with regard to which no exception can be taken.
The agreement between the parties dated 27.01.2018 with regard to which a specific plea was taken in the Reply was also accepted by the Adjudicating Authority. The agreement 27.01.2018 signed and executed by the parties was also part of the Reply.
In view of the above, we are satisfied that there was valid reason for not admitting the application. We are further of the view that issues which have sought to be raised by the Appellant in the Appeal are not the issues which can be adjudicated by Adjudicating Authority in the insolvency proceedings under Section 9.
It is always open for the Appellant to approach the appropriate forum for redressal of its grievances in accordance with law.
With the above observations, we dismiss this Appeal.