National Company Law Appellate Tribunal Idbi Capital Markets And Securities vs M/S Jbf Petrochemicals Ltd on 20 December, 2021 1 NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI APPELLATE JURISDICTION Company Appeal(AT)(Insolvency) No. 524 of 2020 [Arising out of Impugned Order dated 21st January, 2020 passed by the 'Adjudicating Authority'/National Company Law Tribunal, Ahmedabad Bench, Ahmedabad in CP(IB) No. (IB) 245/9/NCLT/AHM/2018] IN THE MATTER OF: M/s IDBI Capital Markets & Securities Ltd. Mafatlal Centre, 3rd Floor, Nariman Point, Mumbai 400 021 Presently at: 6th Floor, IDBI Tower, World Trade Centre, Cuffee Parada, Mumbai 400 005 ...Appellant V M/s JBF Petrochemicals Ltd. Survey No. 273, Village Athola Dadra Nagar Haveli Silvassa 396 230 ...Respondent Present: For Appellant : Ms. Pratiksha Sharma and Mr. Kunal Kanungo, Advocates. For Respondent : Mr. Shiv Kumar Suri, Ms. Madhu Suri, Ms. Nikita Thapar and Ms. Prerna Wagh, Advocates JUDGMENT (Virtual Mode) M. Venugopal, (J): 2 BACKGROUND The Appellant/Applicant/Operational Creditor has preferred the instant Company Appeal (AT)(Insolvency) No. 524 of 2020 before this Tribunal being dissatisfied with the order dated 21st January, 2020 in C.P. No. (IB) 245/9/NCLT/AHM/2018 (filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 r/w Rule6 of The Insolvency and Bankruptcy (Application to Adjudicating Authority, 2016) passed by the Adjudicating Authority (National Company Law Tribunal, Ahmedabad, Ahmedabad). While passing the impugned order on 21.01.2020 in CP(IB) No. (IB) 245/9/NCLT/AHM/2018 at paragraphs 14 to 21 had observed the following: 14. "On perusal of the records it is found that the respondent company had approached the applicant to assist in arranging working capital requirement of maximum Rs. 2000.00 crores (including SBLC of Rs. 550.00 Crores to be given to ONGC Mangalore Petrochemicals Limited) or lower amount as per assessment of working capital of lead bank. According to the offer letter dated June, 2016 (page 20 to the application) the applicant was entitled to the following payment terms: Sl. No. Milestone Amount in Lacs 01. Commencement of fee 20.00 02. On issuance of sanction 30.00 letter by IDBI Bank 03. On financial closure* Balance fee Total fees payable 200.00 3 15. On perusal of the records it is found that with respect to the first invoice dated 17th June, 2016 for Rs. 23.00 lacs (page 34 to the petition), the corporate debtor has already made payment of Rs. 20.00 lacs. With respect to the second invoice dated 30 th December, 2016(page 35 to the petition) and third invoice (page 36 to the petition) are not due and payable for the reasons as stated in the reply dated 28.03.2018 filed by the respondent at page No. 57 as Annexure"A", wherein the corporate debtor has categorically stated that the corporate debtor has only received sanction letter from IDBI bank Limited for an amount up to Rs. 360.00 crores and that amount has not been disbursed till date. Thus, the purpose of engaging the services of the operational creditor for assistance in providing working capital has not been fulfilled. Even the operational creditor has also failed to produce any document(s) with regard to disbursement of the amount in favour of the corporate debtor. 16. On perusal of the records it is also found that the operational creditor's demand notice dated 21.03.2018 has been replied by the respondent vide letter dated 27.03.2018 9page 59 to the reply by respondent) thereby raising a bona fide and genuine dispute and the said fact has not been disclosed by the applicant. On the contrary the petitioner by way of affidavit sworn that the corporate debtor has not raised any dispute. 17. It is also a matter or record that the corporate debtor has filed the affidavit in support of application, however the same is not executed in nonjudicial paper nor any court fee is paid. Further, paragraph No. 2 of the General Affidavit verifying the petition annexed at page No. 45 of the application is not complete and spaces are kept vacant. Genuineness of the document is doubtful as to how the Public Notary has put his sea