AA is not a recovery forum to get back the advance amount paid. The Petitioner has not explained as to why it has not initiated Civil & Criminal prosecution by filing an appropriate Complaint or report before the jurisdictional Court or Police as threatened against Respondent – Astrazeneca Pharma India Ltd. Vs. Brosbel Engineering Pvt. Ltd. – NCLT Bengaluru
June 19, 2020
NCLT held that when there is no specific agreement as to how to deal the goods in question when not delivered, the Petitioner can invoke arbitration clause available in the purchase order, as stated supra. However, the Petitioner chose to issue legal notices to the Respondent to return advance paid. So far as the return of advance amount is concerned, this Adjudicating Authority is not a recovery forum to get back the advance amount paid. The Petitioner has not explained as to why it has not initiated Civil and Criminal prosecution by filing an appropriate Complaint or report before the jurisdictional Court or Police as threatened against Respondent, in its first Legal Notice dated 9th May, 2018. Moreover, invoking provisions of Code is not only alternative remedy available to the Petitioner. The Petitioner failed to make any averment by producing appropriate evidence that the Respondent became insolvent. Whether the Respondent is liable to return advance paid or not, in the light of refusal of the Petitioner to pay the remaining amount of invoice, cannot be adjudicated in a summary proceedings as contemplated under the provisions of Code. Therefore, the instant Petition is filed with an intention to recover the advance amount paid to the Respondent, which is against the object of Code. The Petition is also barred by latches and limitation.