Shahi Md. Karim Vs Kabamy India LLP (NCLAT Chennai)
Summary: NCLAT Chennai dismissed the appeal filed by the suspended director of Lumiford Private Ltd. against the NCLT Hyderabad Bench-I order admitting a Section 9 IBC application filed by operational creditor Kabamy India LLP. The dispute arose from a Carrying & Forwarding Agreement under which the operational creditor had deposited ₹2 crore and subsequently claimed outstanding dues. The appellant argued, among other things, that the agreement contained an arbitration clause, the operational creditor should have pursued arbitration, invoices were disputed, services were not acknowledged, and the Corporate Debtor had not received a fair opportunity to file its counter. NCLAT noted that the Corporate Debtor had appeared before NCLT, the petition and supporting documents were served on 02.11.2022, and despite its right to file a counter being closed, it was not proceeded ex parte on 21.11.2022 and could have appeared for final hearing on 05.12.2022.
The Appellate Tribunal found no substantial ground to interfere on this account. On the arbitration issue, NCLAT expressly held that there is no embargo on an operational creditor filing a Section 9 petition merely because the agreement contains an arbitration clause. It noted that the operational creditor had communicated outstanding dues, including through a ledger, and ultimately demanded ₹3,12,81,028, but payment was not made. Finding no illegality or infirmity in the NCLT order dated 05.01.2023, NCLAT dismissed the appeal without costs and closed the connected applications.
