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Judgment
O R D E R
01.03.2024: Heard Learned Counsel for the parties.
This Appeal has been filed against the Order dated 11.01.2024 by which order Section 9 Application filed by the Appellant was dismissed. The Application under Section 9 was filed for an amount of Rs. 1,06,34,000/-. The Adjudicating Authority heard the Learned Counsel for the Appellant and recorded following findings in paragraph 17 of the Order:
“17.On perusal of the bank statement (ibid), we find no trace of the alleged transaction of Rs. 29,00,000/-. Hence, we find no document on record which supports the claim of the Applicant of Rs. 29,00,000/- towards the Respondent. Further, the Applicant has not mentioned what type of securities were purchased by the Respondent, how much amount was paid, whether any allotment was made, and how the Applicant is claiming a default committed by the respondent towards the security. All these material facts/particulars have not been disclosed by the applicant. In view of the above, the same amount of claim i.e. towards Rs. 29,00,000/- as a Debt is not free from doubts.”
Learned Counsel for the Appellant pointed out that there was error in paragraph 5 with regard to not correctly noticing the amount. He further submits that Appellant has by an application sought to bring on record the debit note issued by the Corporate Debtor which Application was not accepted. It is submitted that debit note acknowledges Rs. 29 Lakhs.
We have considered the submissions of Learned Counsel for the Appellant and Respondent.
Part-IV of the Application prayed for following amount for which the Application was filed:
| 2. | AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED | Amount claimed to be in default is Rs,1,06,34,000/-accounts as on 31.03.2023 |
The Appellant has given a break up of the amount and on 31st December, 2022 it was claimed that Rs. 29 Lakhs was also included. The Adjudicating Authority from the Bank Statement tallied the amount and found that there was no entry in the Bank Statement of Rs. 29 Lakhs and the Appellant subsequently came with the explanation that said amount was amount for transfer of securities in the Corporate Debtor.
Learned Counsel for the Appellant submits that he has filed an I.A. No. 4490 of 2023 to bring the debit note on record which was dismissed as withdrawn by Order dated 14.09.2023 but subsequently no application could be filed to bring on record since the question was never raised.
After having considered the submissions of the parties, we are of the view that the Adjudicating Authority did not commit any error in not giving credence of Rs. 29 Lakhs which was claimed as transfer of securities which was not reflected in the bank statement.
Learned Counsel for the Appellant relies on debit note acknowledgement dated 31st December, 2022 issued by the Corporate Debtor which has been filed herewith and sought to be filed by the Appellant before the Adjudicating Authority by the I.A. as noticed above.
When we look into the order passed by the Adjudicating Authority which is as under:
“I.A.-4490/2023: Ld. Counsel appearing for the Applicant seeks to withdraw the captioned application. In view of the prayer made by him, the application is dismissed as withdrawn with the liberty to file a fresh one.” Liberty was granted to the Appellant to file a fresh application which was never availed by the Appellant. When the particular document was not filed even after liberty was granted by the Adjudicating Authority we are not inclined to look into the said document which is nothing but acknowledgement by the Corporate Debtor not supported by any bank statement. We thus are of the view that Adjudicating Authority did not commit any error in rejecting Section 9 Application.
The Appeal is dismissed.