IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
Company Petition (IB) No. 154/KB/2022
And
Interlocutory Application (IB) No. 1209/KB/2023
Company Petition (IB) No. 154/KB/2022
An Application under Section 9 of the Insolvency and
Bankruptcy Code, 2016, read with Rule 6 of the Insolvency
and Bankruptcy (Application to Adjudicating Authority)
Rules, 2016.
IN THE MATTER OF:
Abdul Hannan
… Applicant/ Operational Creditor.
Versus
M/s. Jai Jute and Industries Limited
… Respondent/ Corporate Debtor.
And
Interlocutory Application (IB) No. 1209/KB/2023
An Application under Rules 11 and 55 of the NCLT Rules,
2016.
IN THE MATTER OF:
M/s. Jai Jute and Industries Limited
… Corporate Debtor.
Versus
Abdul Hannan
… Operational Creditor.
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
Date of Pronouncement: March 05, 2024.
CORAM:
SMT. BIDISHA BANERJEE, HON’BLE MEMBER (JUDICIAL)
SHRI. D. ARVIND, HON’BLE MEMBER (TECHNICAL)
Appearance:
For the Applicant: Mr. Rishav Banerjee, Adv.
Mr. Patita Paban Bishwal, Adv.
Ms. Suranjana Chatterjee, Adv.
For the Respondent: Mr. D. N. Sharma, Adv.
Mr. Nilay Sengupta, Adv.
Ms. Urmila Chakraborty, Adv.
Mr. Ankon Rai, Adv.
Mr. Sujit Banerjee, Adv.
Ms. Ananya Barik, Adv.
ORDER
Per Bidisha Banerjee, Member (Judicial)
1. The Court congregated through hybrid mode.
2. Heard the Learned Counsel, Mr. Rishav Banerjee appearing on
behalf of the Applicant and Mr. D. N. Sharma, appearing on
behalf of the Respondent.
Page 2 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
Company Petition (IB) No. 154/KB/2022
3. The instant application is filed under Section 9 of the
Insolvency and Bankruptcy Code, 2016, for brevity “I&B Code”
read with Rule 6 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016, for brevity
“AA Rules” by one Abdul Hannan, hereinafter referred to as
“Operational Creditor”/ “Applicant” against M/s. Jai Jute
and Industries Limited, hereinafter referred to as “Corporate
Debtor”/ “Respondent” seeking for a direction to commence
the Corporate Insolvency Resolution Process, for brevity “CIR
Process” in respect the Corporate Debtor herein.
4. The total amount claimed to be in default is Rs. 2,16,17,430/-
with an interest at the rate of 12% per annum till the final
payment. The Debt fell due from 14.07.2017.
Facts in nutshell:
5. The Operational Creditor has supplied raw jute to the
Corporate Debtors from time to time which was duly received
by the Corporate Debtor. After certain payments made by the
Corporate Debtor to the Operational Creditor, an outstanding
amount of Rs. 2,16,17,430/- is due and payable by the
Corporate Debtor.
Page 3 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
6. The Corporate Debtor issued a confirmation of account on
April 01, 2020, where the Corporate Debtor confirmed the
amount of Rs. 2,16,17,430/- payable to the Operational
Creditor. The Copy of the Confirmation of account is annexed
at Pages 37-38 to the application.
7. Demand Notice under Section 8 of the I&B Code read with Rule
5 of the AA Rules on 17.03.2022, to the Corporate Debtor
which was delivered on 21.03.2021. Copy of the demand
notice with annexures and speed post acknowledgment with
the proof of services annexed at Pages 39-102 to the
application.
The Learned Counsel for the Applicant would submit:
8. That, the Operational Creditor has supplied the raw jute and
issued several bills for the same from 08.05.2017 to
14.07.2017, annexed at Pages 42-100 to the application which
clearly evinces the claim by way of operational debt of the
applicant.
9. That, after a plethora of follow up with the Corporate Debtor
for the outstanding amount, some cheques were issued to the
Operational Creditor. The said cheques were not deposited to
the bank as the Corporate Debtor requested the Operational
Creditor that there was no sufficient fund in the bank account
Page 4 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
of the Corporate Debtor. The copies of the cheques are
annexed at Page 31-36 to the application.
The Learned Counsel for the Respondent would per contra
submit as follows:
10. That, much prior to the issuance of demand notice on
16.03.2022, a complaint, criminal in nature was lodged by the
Corporate Debtor on 17.07.2017 at the Posta Police Station. It
was alleged that the Operational Creditor, his close aide and
representative Mr. Mehboob Hasan, has committed forgery, in
as such as they have manufactured false documents, made
short supply of raw jute and in conspiracy with the employees
of the Corporate Debtor manufactured and fabricated
satisfactory inspection reports about the inferior quality of raw
jute. The Copy of the complaint dated 17.07.2017 before the
Officer in Charge of Posta Thana is annexed at Page 17-21 to
the Reply Affidavit.
11. Thereafter, another complaint was lodged on 31.12.2017 at
the same Police Station against the Operational Creditor and
said Mr. Mehboob Hassan for threatening the Debtor of to life,
property as well as damaging the reputation of the directors of
Corporate Debtor for non-payment of instalment of December
2017. The copy of the complaint dated 31.12.2017 is annexed
at Pages 26-29 to the Reply Affidavit.
Page 5 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
12. The Learned Counsel for the Respondent takes through the
receipts cum inspection reports indicating the short supply of
goods, annexed to Pages 139-197 to the application.
13. The Learned Counsel for the Respondent would submit that
on 20.07.2017, a settlement agreement was made between the
parties, annexed at Pages 22-25 to the Reply Affidavit, wherein
the complaints of the Corporate Debtor concerning the
quantity and quality of the goods supplied and fraudulent acts
done by the Operational Creditor were admitted by the
applicant. The Parties agreed to settle the dispute sans any
further criminal/ civil proceedings for an amount of Rs. 66
Lakh to be paid in instalments within a period of one year from
the date of execution of the date of settlement agreement,
without levying of any interest.
14. That, the payments under settlement agreement were made by
way of NEFT/RTGS for an aggregate sum of Rs. 10.40 Lakh,
which would be evidenced from the confirmation of account
annexed at Pages 37 to the application and cash amount of
Rs. 55.60 Lakh would be evidenced from the cash vouchers
annexed at Pages 22-40 to the interlocutory application filed
by the Corporate Debtor being I.A. (IB) No. 1209/KB/2023.
Page 6 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
15. That, pursuant to the settlement agreement, the Post-dated
cheques (PDCs) worth Rs. 66 Lakh was given as security to be
retained till full payment is made under the settlement
agreement dated 20.7.2017, which were never supposed to be
presented and hence never presented nor encashed, as
admitted by the Operational Creditor in its application.
16. That, the Demand Notice is bad as amount claimed in Notice
does not show the part payments made by the Corporate
Debtor of an aggregated amount of Rs. 10.40 Lakh (Rs. 7 Lakh
+ 1 Lakh + 2 Lakh + 0.40 Lakh) between 22.05.2019 to
25.07.2019, would be evidenced from the confirmation of
account annexed at Pages 37 to the application.
17. Further, it is alleged that the bills, confirmation of accounts
etc. are all fabricated and forged by the Operational Creditor.
Raising of continuous bills to one party is unusual and cannot
be accepted in ordinary course of business.
18. It is alleged that the confirmation of accounts dated
01.04.2020 where the Corporate Debtor confirmed Rs.
2,16,17,430/- as payable to the Operational Creditor is forged
by the Operational Creditor as stamp of Corporate Debtor is
forged. It is claimed that the name of the Corporate Debtor is
“JAI JUTE & INDUSTRIES LTD” whereas in the stamp it is
written as “JAI JUTE AND INDUSTRY LTD”. Further the
Page 7 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
purported signatures on behalf of Corporate Debtor, annexed
at pages 37 and 38 to the application is signed by two different
persons on two different dates, hence they are not convincing.
19. Further, in the calculation sheet annexed at pages 103- 104
to the application, the total amount due as on 14.07.2017 is
shown as Rs. 2,16,17,430/- after deducting Rs. 2,02,624/-
from Rs. 2,18,20,054/-. The calculation sheet is contrary to
Page 37 of the application as payments of Rs. 10,40,000/-,
admittedly being received by Operational Creditor is not
subtracted from the balance due, rather the calculation sheet
shows that no payment has been received after 14.07.2017,
which is in comprehensible.
20. It is claimed that no designation or description of signing
authority for the Corporate Debtor in the confirmation of
accounts is given, annexed at Page 37 and 38 of the
application.
21. It is asserted that no confirmation of account could have been
issued by the Corporate Debtor as its office and factory was
closed from 13.07.2017 onwards.
22. It is claimed that there is a mismatch in the bill amount
apropos the calculation sheet and discount which the
Corporate Debtor was entitled to as per bills has not been
Page 8 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
given in the calculation sheet. Further, in the bills there are
no GST or VAT element.
23. It would be submitted that under the settlement agreement,
the Operational Creditor’s claim can at best be Rs. 66 Lakh
which is below the threshold limit under Section 4 of the I&B
Code.
In Counter, the Learned Counsel for the Applicant would
submit:
24. That, the Settlement Agreement dated 20.07.2017 is forged
and does not contain any stamp.
25. That, the complaints dated 17.07.2017 and 31.12.2017 were
lodged against the Corporate Debtor, however, neither any
F.I.R has been registered nor any action taken by the
concerned Police Authority.
26. That, the issuance cheques and requesting not to present the
same to the Bank, proves that there is an “operational debt”,
otherwise the cheques would have not been issued by the
Corporate Debtor. Further, issuance of cheque is an
acknowledgement of debt.
27. That, the allegation of forgery and fabricated documents
especially the balance Confirmation Statement dated
Page 9 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
01.04.2020 is simply an afterthought and moonshine defence
solely to defeat the genuineness of the claim of the operational
creditor herein and to create a mirage of a pre-existing dispute.
28. The discernible facts:
28.1. It would be evident that the Operational Creditor has
supplied the raw jute and issued several bills of its service
from 08.05.2017 to 14.07.2017.
28.2. The Complaint before the Posta Police Station against
the Operational Creditor along with others was lodged on
17.07.2017 alleging forgery, manufactory of false
documents, short supply of raw jute, conspiracy with the
employees of the Corporate Debtor to manufacture and
fabricate inspection reports, inferior quality of raw jute is
a fact which cannot be denied by the Operational
Creditor.
28.3. We have noted that the Complainant (Corporate
Debtor) made allegation which would be apparent at Page
5 of the said complaint dated 17.07.2017 that:
“12. The alleged persons have successfully
defrauded the Petitioner’s Company by
supplying inferior quality of raw jutes.
Further, the entire quantity of the raw jute has
Page 10 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
also not been supplied by the Abdul Hannan,
whereas, he has claimed sums for the entire
quantity of raw jute with specified quantity, as
was demanded by the Petitioner’ Company.’
“13. The undersigned has learned from reliable
sources that the said Mehboob Hassan and Abdul
Hannan used to pay handsome rewards to Mr.
P.K. Dubey, Mr. Ramesh Chandra Sharma, for
manufacturing the forged Jute Inspection Reports
and for further allowing the criminal acts with
their complete support to defraud the company.”
28.4. Further, it would be evident that the Settlement
agreement dated 20.07.2017 made between the applicant
and the respondent wherein both the parties agreed to
and decided that the Corporate Debtor should pay the
amount of Rs. 66 Lakh to the Operational Creditor in
instalments within a period of a year from the execution
of the settlement agreement sans any levy of interest,
finds mention in case of the complaints lodged before
police in the year of 2017. Therefore, existence of a
settlement agreement cannot be denied as a fabricated
document or an afterthought.
Page 11 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
28.5. The Corporate Debtor may have submitted the post-
dated security cheques in favour of the Operational
Creditor subject pursuant to the settlement agreement.
Therefore, both the parties had agreed to execute the
settlement agreement that the Corporate Debtor would
withdraw its complaint dated 17.07.2017 against the
Operational Creditor and would not proceed further,
hence there was no further follow up of the complaint.
28.6. We would note that the second complaint was lodged
on 31.12.2017 against the Operational Creditor by the
Corporate Debtor alleging that:
“After intimating on 17th July 2017, the above noted
persons visited the mill the company on 20th July
2017 and after series of discussions, negotiations,
and inspection of records, the company and the
above noted persons entered into a settlement
agreement. In accordance with the amicable
settlement between the company and the above
noted persons. the Petition dated 17th July 2017
was duly withdrawn by the company.
Despite the fact that the mill of the company has
been closed, the company has been arranging funds
through its sources and regularly making payments
Page 12 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
to the above noted persons for payment of the entire
Rs. 66,00,000/- (Rupees Sixty Six Lakh only).
However, since the Company could not arrange for
any funds to pay in the month of December 2017,
when Mehboob Hasan came to the mill of the
company on or around 15th December 2017, the said
Mehboob Hasan verbally humiliated the Petitioner
and abused and cursed the Directors of the
Company and demanded that payment be given to
him. When the undersigned requested Mehboob
Hasan to co-operate and give the company some
time to release the payment, Mehboob Hasan
warned the Petitioners and asked him not to delay
the payments of the above noted persons, else the
Petitioners as well as the directors of the company
will have to pay heavy consequences.
As the above noted persons have strong hold in the
nearby area due to the strong support of the local
hooligans and vandalisers in the vicinity, the
Petitioners duly informed the Directors of the
company regarding the threats given by Mehboob
Hasan. The Directors of the Company were so
requested to talk to the above noted persons to
Page 13 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
resolve the dispute regarding payment of the
instalment amount.”
29. In the backdrop of given facts the issues that fell for
determination:
(i) Whether a Police Complaint can be considered as pre-
existing dispute.
(ii) Whether the issue relating to forgery and fabrication can
be decided in a summary proceeding under I&B Code.
Analysis and Findings:
30. Issue 1:
Whether a Police Complaint can be considered as pre-
existing dispute.
30.1. During the course of argument, the Learned Counsel
D. N. Sharma appearing on behalf of the Respondent, has
drawn our attention towards the judgment passed by the
Hon’ble NCLAT in Sherbahadur D. Yadav Vs. M/s.
Rohan Dyes and Intermediates Ltd. in Company
Appeal (AT) (Ins) No. 472 of 2021 reported in (2022)
ibclaw.in 78 NCLAT wherein the Hon’ble NCLAT, held
that:
Page 14 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
“8. When the allegations against each other are
serious allegations including allegations of offence
against each other, we 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.”
(Emphasis Added)
30.2. Further, we would refer the decision rendered by the
Hon’ble NCLAT in Mr. Anil J. Nemaavarkar vs. M/s.
Page 15 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
Kumar Builders Mumbai Realty Pvt. Ltd. in Company
Appeal (AT) (Insolvency) No. 330 of 2022 reported in
(2022) ibclaw.in 270 NCLAT that:
“5. We are not convinced with the submissions of the
Learned Counsel for the Appellant that there was no
dispute raised before the Demand Notice under
Section 8 was issued by the Appellant. Appellant
himself has filed large number of complaints
including Police Complaint and Complaint
before the Labour Authority regarding his
claim and making other serious allegations
against the Corporate Debtor. We are of the
view that Insolvency and Bankruptcy Code is
not for resolving such dispute, the remedy of
the Appellant with regard to his services
benefits if any, lies elsewhere and Adjudicating
Authority has rightly rejected the Application
noticing the ‘pre-existing dispute’ between the
parties.’
“The Appeal is dismissed.”
(Emphasis Added)
30.3. In the case at hand, the Corporate Debtor made a
complaint on 17.07.2017 before the Posta Police Station
Page 16 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
by alleging for supplying inferior quality of goods (raw
jutes) by the Operational Creditor. However, the record
has been placed before us that the said dispute was
settled through a Settlement Agreement on 20.07.2017
and accordingly, the parties agreed not to proceed any
further with respect the said police complaint. No
evidence of withdrawal or closure of complaint is placed
before us. The complaint being a fact and the allegations
levelled therein being lodged in 2017, i.e., long prior to
this company petition.
30.4. We can safely conclude that the Police Complaint,
prior to the issuance of the statutory notice of
demand under Section 8 of the I&B Code, prosecuting
a dispute regarding the supply of inferior goods
and/or service is a “pre-existing dispute”.
31. Issue 2:
Whether the issue relating to forgery and fabrication can
be decided in a summary proceeding under I&B Code.
31.1. In this context, we would refer the decisions passed by
the Hon’ble Apex Court and by the Hon’ble NCLAT, as
under:
Page 17 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
31.2. Radha Exports (India) Pvt. Limited vs. K.P.
Jayaram reported at MANU/SC/0646/2020: (2020) 10
SCC 538, wherein the Hon’ble Apex Court held that:
“16. Allegations of forgery and fraud are not decided
in proceedings Under Sections 433 and 434 of the
Companies Act 1956 for winding up of a company.
Such disputes necessarily have to be adjudicated in
a regular suit, on the basis of evidence, including
forensic examination reports.’
“17. By an order dated 4th August 2017 the NCLT
dismissed the said winding up petition, on the
ground that the Respondents had failed to comply
with the provisions of Section 7(3)(b) of the
Insolvency and Bankruptcy code, 2016, hereinafter
"IBC", with the liberty to file a fresh petition, if so
advised.’
xxx xxx xxx
“40. There are, as observed above cogent records
including letters signed by the Respondent Nos. 1
and 2 which evince that on 6th October, 2007,
Respondent No. 2 resigned from the Board of the
Appellant Company and at that time the Respondent
No. 2 requested the Appellant Company to treat the
share application money of Rs. 90,00,000/- as
share application money of Mr. M. Krishnan and to
Page 18 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
issue shares for aforesaid value to Mr. M. Krishnan.
The amount was to be treated as a personal loan
from the Respondent No. 2 to Mr. M. Krishnan. A
personal Loan to a Promoter or a Director of a
company cannot trigger the Corporate Resolution
Process under the IBC. Disputes as to whether
the signatures of the Respondents are forged or
whether records have been fabricated can be
adjudicated upon evidence including forensic
evidence in a regular suit and not in
proceedings Under Section 7 of the IBC.”
(Emphasis Added)
31.3. Jaginder Singh Lather v. AU Small Finance Bank
Ltd. reported at 2018 SCC OnLine NCLAT 706, the
Hon’ble NCLAT held that:
“3. In the present appeal this Appellate Tribunal
cannot decide issue such as whether the
document produced by a party is forged and
fabricated or not, though it is always open to
aggrieved person to file an application under Section
65 of the I & B Code with such allegation.”
(Emphasis Added)
Page 19 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
31.4. Shelendra Kumar Sharma v. DSC Ltd., reported in
2019 SCC OnLine NCLAT 1274, it is laid down that:
“5. In view of such infirmity, we observe that the
application was filed by the Appellant with an intent
to receive the dues from the Corporate Debtor and
not with intention for resolution or liquidation,
therefore, we hold that the Adjudicating Authority
rightly rejected the prayer of the Appellant. So far as
the question as to whether the documents are
forged or not is concerned, it cannot be
determined by the Adjudicating Authority
(National Company Law Tribunal) or this
Appellate Tribunal and therefore, the
Adjudicating Authority rightly not deliberated
on such issue.”
(Emphasis Added)
31.5. Satori Global Limited v. Shailja Krishna reported
at 2023 SCC OnLine NCLAT 249, the Hon’ble NCLAT
has further held that:
“15. We are conscious of the fact that the ‘Gift Deed’
was not challenged which is of significance more so
when the ‘title of Shares’ is relevant to decide the
issue of the maintainability. At the cost of
Page 20 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
repetition, any dispute with respect to issues
relating to ‘fraud’, ‘manipulation’, and
‘coercion’, and false statements cannot be
decided in a summary jurisdiction. The
contentions of the Learned Counsel for the
Respondent that there is ‘over writing on the
certificates’, signatures were taken on blank forms,
there is mala fide suppression of some documents
all require examination of evidence and hence
cannot be decided by the NCLT in a summary
fashion.”
(Emphasis Added)
31.6. Further, the NCLT, New Delhi Bench in the case of
Shri T.R. Arya v. Dilawari Motors Pvt. Ltd. reported in
(2024) ibclaw.in 44 NCLT has held that:
“32. We are therefore of the considered view that
the judgment passed by Hon’ble NCLAT in M/s.
Satori Global Case (supra) will apply to the
present case. This Tribunal is not empowered to
adjudicate the issues relating to serious allegations
of fraud and forgery.”
(Emphasis Added)
Page 21 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
32. From the judgments referred to above, we are of the view that
in a summary proceeding under the I&B Code, the dispute
relating to forgery and fabrication of document cannot be
adjudicated by this Adjudicating Authority. To examine an
application under Section 9 of the I&B Code, the Adjudicating
Authority requires to determine whether there is an
“operational debt” exceeding the threshold limit as prescribed,
whether the documentary evidence furnished with the
application substantiating the debt is due and payable and
whether there is existence of a dispute between the parties
before the receipt of the demand notice of the unpaid
operational debt in relation to such dispute. (Mobilox
Innovations Private Limited vs. Kirusa Software Private
Limited reported in (2018) 1 SCC 353)
33. In terms forgoing discussions, we are of the considered view
that the plea of the Corporate Debtor regarding the dispute is
not a moon shine defence and there are pre-existing disputes
between the parties regarding the supply of goods.
34. Accordingly, this Company Petition being C.P. (IB) No.
154/KB/2022 is dismissed.
35. Certified copies of this order, if applied for with the Registry of
this Adjudicating Authority, be supplied to the parties upon
compliance with all requisite formalities.
Page 22 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
I.A. (IB) No. 1209/KB/2023
36. This interlocutory application is filed under Rules 11 and 55
of the NCLT Rules, 2016 by the Corporate Debtor herein
seeking the following reliefs:
(a) Delay on the part of the Corporate Debtor to file the
further reply affidavit in terms of the order dated June
12, 2023 in CP (IB) No.154/KB/2022 be condoned;
(b) Permit the Corporate Debtor/applicant to file the hard
copy of the further reply affidavit in the Registry of
this Hon'ble Tribunal to be kept with the records of C.P
(IB) 154/KB/2022;
(c) To allow the Corporate Debtor to place reliance upon
the further reply affidavit so filed in terms of prayers
above at the time of hearing of the main Company
Petition.
(d) Till disposal of the instant application, all further
proceedings in C.P (IB) No.154/KB/2022 be stayed:
(e) Pass such further order or orders as this Hon’ble
Tribunal may deem fit and proper;
Page 23 of 24
IN THE NATIONAL COMPANY LAW TRIBUNAL
DIVISION BENCH, COURT NO. II
KOLKATA
C.P. (IB) No. 154/KB/2022
And
I.A. (IB) No. 1209/KB/2023
37. We have noted that on 13.01.2023, this Bench allowed the
time to file the reply affidavit by one week, upon the payment
of cost of Rs. 10,000/- to the Calcutta High Court Advocates’
Clerks Philanthropic Trust. The Learned Counsel for the
Corporate Debtor has asserted that the compliance to the
order, the Corporate Debtor has paid the said amount on
20.01.2023 through cheque, annexed at Page 15 to the Reply
Affidavit.
38. Prayers allowed and accordingly, the application being I.A.
(IB) No. 1209/KB/2023 is disposed of.
D. Arvind Bidisha Banerjee
Member (Technical) Member (Judicial)
This Order is signed on the 05th Day of March 2024.
Bose, R. K. [LRA]
Page 24 of 24
