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TMI Blog2017 (10) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... xercise of our limited jurisdiction we are not venturing into such exercise to ascertain the existence or not of the firm M/s J.P. Engineers. Finally the reconciliation statements on which great reliance has been placed, in itself shows that the parties have not yet arrived at a definitive figure which can be considered as an ascertained debt payable as in the case of say a confirmation of balance statement or acknowledgment of debt given by a Debtor to a Creditor and which payment has been defaulted by the 'Corporate Debtor, thereby giving rise to CIRP under IBC, 2016. Even otherwise, in view of the summary jurisdiction as well as limited time period enjoined by IBC, 2016 on the Tribunal to either admit or reject, parties cannot seek to convert the proceedings before this Tribunal into a civil court proceeding akin to a trial making this Tribunal to go through each and every entry as reflected in the respective account books and ascertain whether there is a 'debt' and a default has been committed warranting the initiation of CIRP - NO.(IB)-203(ND)/2017 - - - Dated:- 5-9-2017 - MR. R. VARADHARAJAN, J. For The Petitioner : U.K. Chaudhri, Sr. Adv., Sharad Tyagi and Sameer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorised signatory of the 'Corporate Debtor' under its letter head admitting that there yet remains a debit balance of ₹ 11,55,87,461.80 and that the same has been annexed as Annexure-E to the application. Subsequent to the reconciliation statement the 'Operational Creditor' claims that 4 more cheques were issued on 9.1.2017 by the 'Corporate Debtor', the value of each cheque being ₹ 50.00 lakhs. However, all the 8 cheques when presented for payment, i.e. two cheques on 22.01.2016 (?) and the remaining 6 cheques on 23.01.2016 (?) were dishonoured for the reasons 'insufficient funds'. A legal notice it is claimed had been issued on 20.2.2017 under the provisions of Section 138 read with Section 141 of the Negotiable Instrument Act 1881 by the 'Operational Creditor' through its counsel bringing to the notice of the 'Corporate Debtor' about the dishonoured cheques as well as demanding the payment of the amount due from the 'Corporate Debtor'. For the aforesaid notice issued under the hand of the legal counsel of the 'Operational Creditor', it is submitted by the 'Operational Creditor' that a reply not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also contended by the 'Corporate Debtor' that it is not an insolvent company as sought to be portrayed by the 'Operational Creditor' but on the other hand has assets worth ₹ 189.88 crores, as per the latest audited balanced sheet and that it also employs nearly 1100 employees and the financials discloses that it is a solvent company which is also vouched by its Chartered Accountant by way of certificate issued by him. The business relationship with the 'Operational Creditor' is not denied by the 'Corporate Debtor'. On the other hand, it is stated that for more than a period of 2 decades, there has been a close relationship between the 'Operational Creditor's group companies and firms belonging to the Group namely SMW Metals Pvt. Ltd., J.P. Engineers, the 'Operational Creditor' and though they are separate legal entities, they are under the same management and control. However, it is also claimed by the 'Corporate Debtor' that though they come under the same management and control, each of these entities are distinct and separate having their own PAN, VAT, TIN Nos. It is further claimed in the reply that prior to Nov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it does not owe any money on the said count. It is also pointed out by the 'Operational Creditor' that the solvency of the 'Corporate Debtor' which is sought to be established through certificate issued by Company's Auditor may not be a good ground for avoiding CIRP once the 'Operational Creditor' is able to establish that there is an unpaid liability and the amount is in default. 6. This Tribunal has carefully considered the rival pleadings of the parties as well as heard elaborately the oral submissions piloted on behalf of rival parties by the respective Sr. Counsels. The main thrust on the part of the 'Corporate Debtor' put forward to stave the initiation of CIRP is twofold in nature - one relating to preliminary objections by way of non-compliance strictly with the provisions of IBC, 2016 on the part of 'Operational Creditor' and the second in relation to the competency of the 'Operational Creditor' to sustain the claim for and on behalf of the firm namely J.P. Engineers and for which no proof has been adduced by the 'Operational Creditor' till the conclusion of arguments. In other words, the competency of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tribunal under the provisions of IBC, 2016. Reference to the pleadings particularly the rejoinder statement as filed by the 'Operational Creditor' discloses that this Petition has been filed not only on behalf of the 'Operational Creditor' in relation to its alleged outstanding owed from the 'Corporate Debtor' but also for and on behalf of the firm namely J.P. Engineers in respect of its outstanding, taken over allegedly by the operational creditor as a going concern on and from 4.11.2016. However, as rightly contended by the Ld. Sr. Counsel for the 'Corporate Debtor', it is seen that no document to sustain or support the plea of the 'Operational Creditor' has been filed along with the typed set of documents annexed with the application. On the other hand, the plea of takeover of the firm M/s J.P. Engineers as a going concern has been only pleaded for the first time in the rejoinder and even in the rejoinder no document evidencing the take over and thereby the transfer of debt has been annexed to sustain the said plea. Even though the provisions of IBC, 2016 permit the assignees or transferees of a debt to file a Petition under IBC, 2016 as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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