2018 (3) TMI 1892 - Tri - Companies Law

Winding up of Respondent Company - failure to comply with section 9 of IBC - non-compliance with Section 9(5)(ii)(a) of IBC - HELD THAT - In pursuance to transfer of the case to this Tribunal, the Petitioner is required to comply with the provisions of Section 9(3)(a) to (c) of IBC. Hon'ble NCLAT has consistently held including the one rendered in Company Appeal Uttam Galva steel limited v. GF Feutsche Fortair AG 2017 (8) TMI 1198 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELH , that all the provisions are mandatorily required to be complied with by the Operational Creditor in order to maintain the petition before this Tribunal against the Corporate Debtor under the provisions of IBC, 2016. In view of lack of compliance of the mandatory provisions. As stated by the respondents that it is not insolvent Company and it is earn profits earned profit for the year 2017. The amount claimed by the petitioner also clearly disputed by the respondents. The amounts claimed is ₹ 68,94,997/- are inflated invoices raised by the Petitioner, of which the Liquidated Damages payable by the Petitioner amounting to ₹ 12,75,850/- inflated billing in the invoices raised by the Petitioner amounting to ₹ 15,59,341/- and an amount of ₹ 40,59,806/- was deducted and adjusted as a result of breach of contract and no amount is due or payable to petitioner. Therefore, it is clear case of disputes the Adjudicating Authority cannot enter into roving enquiry when the amount is not specific. And also the petitioner has not complied all procedures prescribed under the provisions of IBC, 2016, after transfer the case from the High court of AP. Therefore, instead of examining several disputed questions with regard to amount in question, and in complying with procedures prescribed under IBC, 2016, after transfer the case from High court, it would be in the interest of justice to dispose of the case, with a liberty to the petitioner to file a fresh in accordance with provisions of IBC, 2016. And it is not a fit case to admit - petition dismissed.

Summary

Issues:
- Company Petition seeking winding up of Respondent Company under Companies Act, 1956.
- Compliance with Insolvency and Bankruptcy Code, 2016.
- Disputed outstanding dues and invoices between the Petitioner and Respondent.
- Jurisdiction transfer from High Court to National Company Law Tribunal.
- Profitability and financial status of the Respondent Company.

Analysis:
1. Company Petition for Winding Up:
The Company Petition filed sought to wind up the Respondent Company under Sections 433(e) and 434(1)(a) of the Companies Act, 1956. The Petitioner alleged non-payment of outstanding dues by the Respondent, amounting to a total of &8377; 1,08,58,026, including interest and statutory taxes. The Petitioner claimed that the Respondent was commercially insolvent and unable to discharge its liabilities, justifying the winding-up petition under the Companies Act.

2. Compliance with Insolvency and Bankruptcy Code, 2016:
The Respondent argued that the Petitioner failed to comply with the provisions of the Insolvency and Bankruptcy Code, 2016 (IBC) and the Companies (Transfer of Pending Proceedings) Rules, 2016. The Respondent contended that the Petitioner did not follow the required procedures under the IBC, including submitting necessary documents and information within the specified timelines, which rendered the Company Petition lacking in merits.

3. Disputed Outstanding Dues and Invoices:
The Respondent disputed the outstanding dues claimed by the Petitioner, alleging inflated invoices and deductions made by the Petitioner. The Respondent provided a detailed account reconciliation to support its claim that no amount was outstanding or payable. The Respondent highlighted discrepancies in the invoices raised by the Petitioner, including liquidated damages and breach of contract deductions, asserting that no amount was due to the Petitioner.

4. Jurisdiction Transfer and Financial Status:
The case was transferred from the High Court to the National Company Law Tribunal. The Respondent emphasized its profitability and financial stability, presenting evidence of profits in the previous financial year. The Respondent argued that the Petitioner's claims lacked merit and that the Adjudicating Authority should not engage in a roving enquiry over disputed amounts. The Respondent suggested that the case should be disposed of, allowing the Petitioner to file a fresh petition in accordance with the IBC, 2016.

5. Judgment and Disposal:
The Tribunal disposed of the Company Petition, granting liberty to the Petitioner to file a fresh petition after reconciling accounts and complying with the provisions of the Insolvency and Bankruptcy Code, 2016. The decision was based on the lack of compliance with mandatory provisions of the IBC and the disputed nature of the outstanding dues claimed by the Petitioner. The Tribunal deemed it appropriate to allow the Petitioner to refile the petition in adherence to the prescribed procedures under the IBC.