IN THE NATIONAL COMPANY TRIBUNAL AT NEW DELHI

APPELLATE JURISDICTION
COMPANY APPEAL (AT) INSOLVENCY NO. 827 OF 2021

MEMO OF PARTIES
IN THE MATTER OF:
POWER2SME PRIVATE LIMITED
AD-13, BASEMENT (LGF)
TAGORE GARDEN,
NEW DELHI- 110027

ALSO AT:

POWER2SME PRIVATE LIMITED

PLOT NO.88, UDYOG VIHAR PHASE IV,
GURUGRAM, HARYANA- 122015 …….APPELLANT

VERSUS
PSR AQUA AND ENGINEERS PRIVATE LIMITED
HAVING REGISTERED OFFICE AT:
1589, MADARSA ROAD, KASHMIRI GATE,
DELHI-110006
……..RESPONDENT

APPELLANT

THROUGH
 PANKAJ BHAGAT
ADVOCATE FOR THE APPELLANT
N29-A,LGF, JANGPURA EXTENSION
NEW DELHI-110014
PH:01143521415,8800791415,9871441415
jalpalegal@gmail.com
DATED:
NEW DELHI

PETITION ON BEHALF OF THE APPELLANT UNDER SECTION

61 OF THE INSOLVENCY AND BANKRUPTCY CODE,2016(IBC)
PRAYING FOR RECALL/SETTING ASIDE ORDER DATED
03.03.2021.

MOST RESPECTFULLY SHOWETH:

BRIEF SYNOPSIS
“From the above, it is clear that at the stage of admission of

Application under Section 7, the requirement is to give limited

Notice and the considerations would be to see whether or not

satisfaction by Adjudicating Authority could be reflected on the

basis of Sub-Section (5) of Section 7. If there is a financial debt,

which is more than Rs.1 Lakh and there is a default and if the

Application is complete, the Application would have to be

admitted......"
The above quoted verdict has been passed by this Hon’ble

Appellate Tribunal in the cases of

1. “Vineet Khosla Versus Edelweiss Asset

Reconstruction Company Ltd. and Others” 2019 SCC

OnLine NCLAT 487, interalia elucidating the principle

that if the debt is more than one (01) lakh and admitted

by the Corporate Debtor, then the petition deserves to be

admitted.

2. Company Appeal (AT) (Ins) No.271 of 2020 in the

case of Mr. Subhash Agarwal versus AU Small Finance

Bank Limited. "8................. As far as the admission of

the Application is concerned, question required to be

considered by Adjudicating Authority, was to see if

financial debt was due and if default was of Rupees One

Lakh. If the Application is otherwise complete, the

Application is required to be admitted."

3. Company Appeal (AT) (Insolvency) No. 549 of 2020 in

the case of Narendra Kumar Agrawal versus

Montorone Leasing Private Limited. "20 It is also clear

that the Corporate Debtor has not paid the amount due

and more than Rs.1 (one) lac. The Application is complete.

Therefore, the Adjudicating Authority was justified in

admitting the petition. We do not find any reason to

 interfere with the Adjudicating Authority's order in

admitting the petition. Thus, Appeal is devoid of merit

hence dismissed. No order as to costs.

It is clearly stated that with reference to the above

mentioned cases it can be concluded that all the cases

are dealt under the court of 03 Judges Bench and are

therefore shall be binding on the 02 Judges Bench.

Therefore the petition deserves to be admitted.

4.Company Appeal (AT) (Insolvency) No. 720 of 2018 in

the case of Pedersen Consultants India Pvt. Ltd. Vs.

Nitesh Estates Limited. From the aforesaid decision, it is

clear that the existence of dispute must be pre-existing i.e. it

must exist prior to issuance of the demand notice or invoice.

If it comes to the notice of the Adjudicating Authority that the

‘operational debt’ is exceeding Rs. 1 lakh and the application

shows that the aforesaid debt is due and payable and has

not been paid, in such case, in absence of existence of a

dispute between the parties or the record of the pendency of

a suit or arbitration proceeding filed before the receipt of the

demand notice of the unpaid ‘operational debt’, the 13

Company Appeal (AT) (Insolvency) No. 720 of 2018

application under Section 9 cannot be rejected and is

required to be admitted.

It is humbly stated that this honourable tribunal not only

erred in failing to appreciate the law laid down by three

judges’ bench of this honourable tribunal in the case of……

It is humbly summitted this honourable tribunal while

passing the judgement dated 22/03/ 22 erred why not even

referring to the above stated judgement despite the same

being argued by the appellant at length and the same is

above binding as the judgement dated 22/03/ 22 has been

passed by two judges’ bench. The honourable Supreme

Court recently Recently, the Supreme Court considered a

matter concerning binding nature of decisions of its larger

bench in the case of Pradip Chandra Parija v. Pramod

Chandra Patnaik (254 ITR 99). The issue before the

Constitution bench of the Apex Court consisting of five

learned judges headed by the Honble Chief Justice of India

was whether whether two learned judges of the Supreme

Court can disagree with a judgment of three learned judges

and whether, for that reason, they can refer the matter

before them directly to a Bench of five judges The

Constitution bench held that judicial discipline and

 propriety demands that a Bench of two judges of the

Supreme Court should follow a decision of a Bench of three

judges. If the Bench of two judges concludes that an earlier

judgment of a Bench of three judges is so very incorrect

that in no circumstances, can it be followed, the proper

course of action for the Bench of two judges to adopt is to

refer the matter before it to a Bench of three judges, setting

out the reasons why it could not agree with the earlier

judgment.

This honourable tribunal has recorded a contradictory

finding which in the humble submitted of the appellant is

incorrect and goes to the root of the matter. This

honourable tribunal at para five has mentioned that the

appellant has accepted debit note issued by the

respondent / Corporate debtor. It is most respectively

Submitted that it has been constant stand of the appellant

that it never accepted the alleged debit note.

1. Reliance in this regard is meant to Furthermore, the respondent

wrongly and contradicts while alleging that the debit notes of Rs.
12.5 lakhs have been admitted, as because:
a) Respondent at one hand admits that the Debit Note was denied by
OC (Please refer page 7 of Reply by the respondent before this
Hon’ble Tribunal). This fact is also recorded by the Ld. AA (Please
refer page 53 of Appeal Paper book), whereas in the pleading alleges
the same to have been admitted.
b) Not even a single document to support the allegation that the debit
note was ever accepted, has been filed by the respondent.
c) Appellant repeatedly refused to accept debit note. (Please refer
Email dated 26.02.2018 at page 58 of Reply; Email dated
04.07.2018 Page 60 of Reply; Email dated 25.10.2018 page 61 of
reply before this Hon’ble Tribunal)
d) No date to show this debit note was ever accepted. Only says
received which doesnot mean accepted. (Please refer page 66 of
Reply by the respondent before this Hon’ble Tribunal). Further, the
offer already modified and reduced, thus, allegation of the old
higher offer accepted is bad.
e) Without prejudice to the fact that Debit note has been denied by
the Appellant, the Debit note at the best is towards counter claim of
Damages. Damages being “un-liquidated” needs to be proved, else
cannot be granted. Reliance is placed on Section 73 + 74 of Indian
Contract Act. Reliance is also placed on Fateh Chand Vs.
BalkishanDass (AIR 1963 SC 1405), Maula Bux v. Union of India
(1970 (1) SCR 928), Shree Hanuman Cotton Mills and Anr. v. Tata
Aircraft Limited (1970 (3) SCR 127), Satish Batra v. Sudhir Rawal
(2013) 1 SCC 345, Kailash Nath Associates Vs. Delhi Development
Authority and Another {(2015) 4 SCC 136}, ONGC Ltd. v. Saw Pipes
Ltd., (2003) 5 SCC 705.

Further this honourable tribunal at para – has itself

recorded a contradictory finding that the appellant has

denied the debit note.

Furthermore, the usage of the face debit note is only

incorrect as because There was only one Alleged debit note.

That this honourable tribunal further fell in error to

appreciate that the respondent/ corporate debtor is guilty

of making contradictory stand and regards to issuance of

cheque for Rs.15 lakhs. Reference is made to para seven of

the order dated 22/03/22 where in this tribunal recorded

the statement of the corporate debtor as under, she has

also urged that there is a running account of the

Operational Creditor with the Corporate Debtor which is

evidenced by the cheque for Rs.15 lakhs given by the

Respondent/Corporate Debtor, and which was accepted by

the Operational Creditor without raising any issue. "

It shall be imperative to note that the above quoted stance

of corporate debtor amounts to cheating, perjury has

because it is the stand of (that corporate debtor that cheque

number 886620 got lost which led to the corporate debtor

lodging FIR On our website as Apple in para six of

judgement dated 22/03/22 Das at one place the corporate

debtor Alleges To have issued and given cheque number

886620 for Rs.15lakh to the appellant and whereas on the

other hand also alleges to have launched a FIR .

Furthermore, the respondent is also guilty to filing force

and fabricated document on record. Does an error apparent

on the record has cropped up and goes to the root of the

matter

Another error has cropped up on the face of record as this

honourable tribunal at para nine judgement dated

22/03/22 has recorded an incorrect statement which was

neither argued nor is in conformity with the admission

made by the corporate debtor on record reference is made

to He has claimed that the cheque no.886620 was not

tendered towards the payment of alleged operational debt

but was given by the Corporate Debtor for payment of the

Company Appeal (AT) (Insolvency) No. 827 of 2021

balance amount after deducting the amount of debit notes

from total outstanding amount.

It is most respectfully submitted that while recording the

above said failing of That there were three cheques involved

in the present case that is cheque number…….. amount

five lakh, cheque number – amount 5.25 lakh, cheque

number 886620 amount 15lakh rupees

It was not the check number 886620 but the remaining to

check namely——- which as per the admission of the

corporate debtor was prepared however never give to the

appellant. Reliance in this regard is made to the statement

of the corporate debtor before the adjudicating Authority by

way of its reply affidavit, relevant portion that admission

made by corporate debtor in its reply affidavit (please refer

para 10 add the page 135 of paper book)

Further be imperative to the note that the total operational

is Rs.22,75,120 out of which the corporate debtor at the

more than – places admitted that Rs.10.25lakh approx is

payable after adjusting the amount of alleged debit note,

which debit note was for Rs.12.5 lacks. A major

mathematical calculation would show that-

alleged debit note amount is = 10.5

Amount of cheque number—— and ——- = 10.25 aproxx

Total= 22.75 aproxx

Thus, this honourable tribunal erred in recording that fact

of the case also at para nine as corporate debtor on

numerous occasions and needs a categorical admission

that two cheques (bearing no. —- and ——-) were prepaid 5

lakh and 5.25,00,00 to words dues of the appellant off and

adjusting alleged debit note amount similar admission also

be made by corporate debtor at para 132 of appeal paper

book at para 2.6. The corporate debtor once again in its

email dated 3/07/2018 (page 165 of appeal paper book)

Steam has also once again been admitted while email dated

25/10/18 at page 165 of appeal paper book. Thus, there is

factual error in para nine of the judgement dated 22/03/22

Another error which has cropped up on the face of the

record is that despite this tribunal recorded few admissions

in regard to admitted amount of Rs.1 025119 apart from

several other admission such as

a) Admits 2 cheques prepared for 5 and 5.25 lakhs

totaling Rs. 10,25,119/-, towards dues of the Appellant

(Please refer Para 10 at page of 135 of Appeal Paperbook).

b) Admits all invoices for Rs. 22,75,120/- which includes

Rs. 10,25,119/- (Please refer Part IV at page of 136 of

Appeal Paperbook)

c) Says 12.5 to be adjusted in total payable amount of

Rs. 22.75 Lakhs (Please refer para 2.6 at page 132 of

Appeal Paperbook)

d) Admits 10.25 payable, and only seeks to adjust the

Debit note amount (email 03.07.2018) (Please refer page

165 of Appeal Paperbook)

e) Again admits 10.25 payable (email 25.10.2018) (Please

refer page 169 of Appeal Paperbook)

Furthermore, this honourable tribunal also erred by neither

referring to Noor dealing with the legal preposition that is a

counterclaim of or damages would not admit to a

prescriptive dispute.
This honourable tribunal in its judgement dated 22/03/22

erred by not considering referring or delaying with the

above said legal questions

Another error which cropped up on the face of the record is

that the following judgement through argued and also

mentioned in the written submission were compiling

ignorance and not considered it is submitted that the

following judgement specifically hold that counterclaim is

a)Vineet Khosla vs Edelweiss Asset Reconstruction 2019

SCC Online NCLAT 487, 03 Judges Bench, (Default of over

01 Lakh, petition be admitted) (Please refer para 15 page

206 of Appeal Paperbook)

b) Subhash Agarwal vs AU Small Finance Company

Appeal (AT) (Ins.) 271 of 2020 (Default of over 01 Lakh,

petition be admitted) (Please refer para 8 page 212 of

Appeal Paperbook)

c) Narendra Agarwal vs Montrone Leasing Company

Appeal (AT) (Ins.) 549 of 2020; 03 Judges Bench, (Default of

over 01 Lakh, petition be admitted) (Please refer para 20

page 226 of Appeal Paperbook)

d) Pedersen Consultants vs Nitesh Estate Company

Appeal (AT) (Ins.) 720 of 2018/03 Judges Bench (Counter

claim not enough) (Please refer paras 10 to 12 page 243 of

Appeal Paperbook)

e) Ahluwalia Contracts (India) Ldt Vs. Raheja Developers

2019 SCC Online NCLAT 942; 03 Judges bench; (Pls refer

paras 21 to 24 of Page 248 of Appeal Paperbook) (01 Lakh

and Counter claim not enough)

Furthermore, honourable tribunal also erred by Failing to

appreciate the arguments placed by the appellant that is

Debit note has been denied by the Appellant, the Debit note

at the best is towards counter claim of Damages. Damages

being “un-liquidated” needs to be proved, else cannot be

granted. Reliance is placed on Section 73 + 74 of Indian

Contract Act. Reliance is also placed on Fateh Chand Vs.

BalkishanDass (AIR 1963 SC 1405), Maula Bux v. Union of

India (1970 (1) SCR 928), Shree Hanuman Cotton Mills and

Anr. v. Tata Aircraft Limited (1970 (3) SCR 127), Satish

Batra v. Sudhir Rawal (2013) 1 SCC 345, Kailash Nath

Associates Vs. Delhi Development Authority and Another

{(2015) 4 SCC 136}, ONGC Ltd. v. Saw Pipes Ltd., (2003) 5

SCC 705.the judgement relied by the appellant our binding

on this tribunal under article 141 of Indian constitution

being passed by honourable Supreme Court of India, which

judgements are binding precedent.

Another error apparent face on record as an incorrect fact

has been recorded in the judgement dated 22/03/22 at

para 17 which is reproduced as under subsequent issue of

two cheques dated 03.07.2018 and an earlier cheque for

Rs. 15 lakhs which was dishonoured go to show that the

payments were not being made invoice-wise but were being

made as running account.

It is humbly submitted that the above quoted para is

factually incorrect and also contradictory. It is clarified that

the corporate debtor in its reply affidavit before Authorities

stated to have prepared 2 cheque dated – and – however

there is no Averment on record that the said cheque was

even issued.

It is humbly submitted that the face “Cheque Prepared” and

“Cheque Issued” or different in nature and denotes

altogether different positions. Cheque prepared cannot be

considered as check issued. In the present case as per the

admission of corporate debtor thus said to cheque were

prepared however the same was never issued.

Further the checks for Rs.15 lakh that is cheque number

886620 as per the statement of the corporate debtor was

lost and was not issued to words payments. Thus, the

finding that the said cheque showed that payments was not

being made invoice wise but were being made as running

account were bad and incorrect.

It is said 2 cheques would never issue and the said 3rd

cheque Being 886620 was stated to have been lost

It goes without saying that no payment what so ever was

received through the said three cheques thus the finding

that the said payment (wide the said cheques) never

happened thus the reliance on the said checks to arrive at a

finding that the said payments show a running account is

incorrect as no payment is received what so ever