2018 (3) TMI 319 - Tri - Insolvency and Bankruptcy

Corporate insolvency process - existence of operational debt - failure to make payment against procurement of paddy - The petitioner- operational creditor is a commission agent and a middleman who used to procure the paddy from farmers to be supplied as per the demand in the open auction. - Held that - As already observed in this case the respondent had been making regular payments of the interest as well as the principal to the petitioner-operational creditor about three years after the transaction was completed but raised an issue with regard to the quality-cut only after the first demand notice under Section 8 of the Code was sent. The present cannot be considered to be a case where the dispute has been raised before the receipt of the demand notice. It is not the case of the respondent that it has settled the accounts of the present transaction with the Pacca Arthias nor it is averred in defence that Pacca Arthias filed any proceedings against the petitioner nor even the respondent has taken any proceedings against the petitioner except making the regular payments and is coming up with such plea which on the face of it deserves to be out rightly rejected. Then no document to show that the debit notes were ever set to the petitioner nor any other communication was sent to the petitioner who has paid the price of the paddy to the farmers from whom it was procured. This is what should be understood as correct interpretation of the term dispute while separating grain from the chaff and to reject the spurious defence which is merely a bluster. In view of the above the application deserves to be admitted.

Summary

Issues Involved:
1. Jurisdiction and maintainability of the petition.
2. Existence of debt and default.
3. Compliance with procedural requirements under the Insolvency and Bankruptcy Code, 2016.
4. Dispute regarding the quality of goods supplied.
5. Admission of the application and declaration of moratorium.

Issue-wise Detailed Analysis:

1. Jurisdiction and Maintainability of the Petition:
The petitioner, a sole proprietorship concern, filed the petition under Section 9 of the Insolvency and Bankruptcy Code, 2016, read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The respondent company, incorporated on 25.03.2003 with its registered office in Chandigarh, falls within the jurisdiction of the National Company Law Tribunal, Chandigarh. The petitioner's license as a commission agent was valid and renewed up to 31.03.2018.

2. Existence of Debt and Default:
The respondent-corporate debtor placed an order for the purchase of paddy from the petitioner, and the paddy was supplied during the season from 21.11.2014 to 21.12.2014. The total quantity supplied was 1683 quintals for a total price of ?47,26,788.34. The respondent made part payment of ?39,52,749/-, leaving an outstanding amount of ?25,77,097/-, which includes ?6,22,020/- as interest. The petitioner attached a computation of default in Annexure A-3. The respondent admitted the receipt of the paddy and the outstanding amount in Form VAT-D2 dated 22.06.2016.

3. Compliance with Procedural Requirements:
The petitioner issued a demand notice dated 15.08.2017, to which the respondent replied on 30.08.2017. Due to a technical defect, the initial petition was withdrawn with liberty to file a fresh petition. Subsequently, another demand notice dated 26.10.2017 was issued, and the instant petition was filed on 17.11.2017 after the expiry of the 10-day period required under Section 8 of the Code. The petitioner complied with the service requirements by dispatching copies of the petition to the respondent's registered office and email address.

4. Dispute Regarding the Quality of Goods Supplied:
The respondent raised a dispute regarding the quality of the paddy supplied, claiming deductions due to inferior quality. The respondent alleged that the goods supplied were of inferior quality, resulting in less production of rice, and made deductions amounting to ?9,35,650/-. However, there was no prior communication or evidence supporting this claim before the receipt of the demand notice. The respondent's payments of interest and issuance of cheques to the petitioner indicated acknowledgment of the debt. The Tribunal found the respondent's defense to be spurious and unsupported by evidence.

5. Admission of the Application and Declaration of Moratorium:
The Tribunal, after considering the facts and evidence, admitted the application and declared a moratorium under Section 14 of the Code, prohibiting the institution or continuation of suits, transferring or disposing of assets, and recovery actions against the corporate debtor. The supply of essential goods or services to the corporate debtor was directed to continue during the moratorium period. The Tribunal appointed Mr. Atul Kumar Kansal as the Interim Resolution Professional and directed further proceedings.

Conclusion:
The Tribunal admitted the petition for initiating the corporate insolvency resolution process against the respondent-corporate debtor, declared a moratorium, and appointed an Interim Resolution Professional. The Tribunal found that the respondent's defense regarding the quality of goods was not credible and lacked evidence, thus ruling in favor of the petitioner.