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TMI Blog2017 (11) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... or documents to the Debtor for recovery of dues, engage counsel, to file application before NCLT, Chandigarh on behalf of the company and to do to all the necessary acts in the process of the case. The contents of the application are supported by an affidavit of Mr. Pankaj Singhania aforesaid. 2. The respondent is a company incorporated on 18.02.1998 with a nominal share capital of Rs. 2 crores and paid-up capital of Rs. 1,09,96,000/-. The respondent-company has been allotted CIN L17115PB1998PLC021084. It has its Registered Office at Ludhiana and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 3. The facts of the case, briefly stated are that the petitioner supplied Acrylic Fibre and Polyester Staple Fibre on different occasions to the respondent- corporate debtor for which various bills were issued. The corporate debtor was committed default in payment of the debt of 177 bills from 29.04.2014 to 23.07.2014 as per the particulars given on pages 6 to 8 of the paper book. The total amount of debt is Rs. 8,15,97,672/-. As per the terms of the invoices, the amount of each bill was payable within 15 days, failing which the respondent was liable to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce, and accordingly, the instant petition has been filed. It is stated that there is no dispute raised by the respondent. Reply to the demand notice dated 08.07.2017 is at Annexure-7 and the reply which was sent to the notice under Sections 433 and 434 of the Companies Act is at page 154 of the paper book. That reply is dated 12.08.2016. 7. In order to comply with the requirements of Section 9(3)(b) of the 'Code', the operational creditor has filed affidavit dated 14.07.2017 of the authorised representative of the petitioner stating that reply to the notice under Section 433 and 434 of the Companies Act was received, but in para 5 of the affidavit it is stated that operational creditor re-affirms that there is no dispute. 8. The petitioner has also filed copy of its bank statements maintained with HDFC Bank (Annexure-5) for period from 20.06.2017 to 10.07.2017. This period has been taken from just before the date of demand notice sent under Section 8 of the 'Code'. The petitioner has also attached certificate from its Bank dated 11.07.2017 Annexure 6 that no amount has been deposited by the respondent in the account of the petitioner for the period from 20.06.2017 to 11.07.2017. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only Rs. 6.15 crores. 13. In fact, M/s Universal Woollen Mills, a firm owned by same management has shown a similar amount due from the respondent wrongly. These facts came to the knowledge of the respondent when a notice dated 26.05.2017 under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002) was received, wherein Punjab National Bank had asked the respondent to make payment of Rs. 8,47,12,839/- due to the said firm. Copy of the said notice is at Annexure R-4 (colly). The respondent in the reply dated 13.08.2017 which is part of Annexure R-4 (colly) denied that they owe any amount to M/s Universal Woollen Mills. It is further stated that the parties have been making sales and purchases with each other along with their sister concerns from financial years 2011-12 to 2014-15. Thereafter, all the business dealings were stopped in the financial year 2014-15 with final settlement of accounts between both the groups. The Singhania Group of Companies was controlling the petitioner-company and M/s Universal Woollen Mills, whereas Jindal Group Companies controlled M/s Jindal Cotex Limited (Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sibility of the respondent challenging the correctness of the transactions. The case of the petitioner is further supported from copy of the ledger account of the respondent being maintained by the petitioner company as at Annexure-2. The outstanding amount claimed in this case as reflected in the books of account for the year 2014-15 is carried forward in the ledger account of the subsequent years 2015-16 and 2016-17, which was carried forward in the ledger account for the year 2017-18 also being part of Annexure-3. 17. All other requirements having been fulfilled by the petitioner, the question that would call for consideration is whether the petition is liable to be admitted. It is mandatory requirement for the petitioner as per clause (b) of sub-section (3) of Section 9 of the Code that the Operational Creditor has to furnish along with the application an affidavit to the effect that there is no notice given by the corporate debtor relating to the dispute of unpaid operational debt. The affidavit filed by the petitioner company as at Annexure-9 states about issuing notice under sections 433 and 434 of the Companies Act, 1956 and reply thereto sent by the respondent but it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent can be considered as a dispute disentitling the petitioner to an order of admission. 21. In the financial statements of the petitioner for the year ending 31.03.2016 contains the figures for the previous financial year ending 31.03.2015, the aggregate amount of trade receivable outstanding for a period exceeding six months has been shown as nil. The trade receivable as on 31.03.2015 are stated to be Rs. 6,14,51,224.74 and an amount of Rs. 7,87,06,563.64 for the year ending 31.03.2016. These figures are highlighted on pages 34, 48, 88 and 87 of the reply. The same figures are depicted in balance sheet at page 72 with regard to the trade receivables. These financial statements are at Annexure R-3 (colly). The trade receivable upto 31.03.2015 are shown as Rs. 6,14,51,224.74 and the same is the reflection of the aggregated amount of trade receivables for the period more than six months as nil at page 50. Learned counsel for the respondent also referred to bad debts written off for Rs. 8,15,97,672/- at page 96 of the reply for the financial statement ending 31.03.2015 and shown as nil in the year ending 31.03.2016. 22. Against this, learned counsel for the petitioner referred to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enged the maintainability of the petition on account of winding up petition pending against the respondent at the instant of another creditor. In that regard, I would refer to the order of the Special Bench of NCLT, New Delhi in Union Bank of India v. Era Infra Engg. Ltd. [IB-190(PB)/2017, dated 21-8-2017] in which it was recommended that the matter be referred to a Larger Bench in view of the divergent views of different Benches by framing following questions: "1. Whether the process under the Insolvency and Bankruptcy Code, 2016 can be triggered in the face of the pendency of the winding up petitions before the respective High Courts or it is to be considered as an independent process? 2. In case the process is considered to be not independent, whether the petition filed under the code is required to be transferred to the concerned High Court which is having seisin over the winding up proceedings or await the outcome of the winding up proceedings by adjourning it sine die? 3. Whether the code gives any room for discretion to be exercised for adjourning it sine die in view of the statutory mandate given under Sections 7, 9 and 10 of the code for expeditious disposal of cases ..... X X X X Extracts X X X X X X X X Extracts X X X X
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