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TMI Blog2018 (5) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... on 08.02.2013 under the Companies Act, 1956 with authorised capital of Rs.40 crores and paid up share capital of Rs.31,69,01,170/- having been allotted CIN U1513HR2013PTC048297. 3. The petitioner, Brij Lal Ashok Kumar is a proprietorship concern working as Commission agent in New Anaj Mandi, Ballabgarh, Faridabad, Haryana. It is stated that on demand and request of the respondent-corporate debtor, the petitioner supplied paddy to the respondent from time to time commencing from 21.10.2014 to 03.01.2016 and raised the invoices accordingly. 4. It is further stated that the invoices so raised and the payment/part payment so received against the same from the respondent from time to time were duly debited and credited on regular basis on the running account maintained by the petitioner and this running account reflected debit balance of Rs..2,23,89,593/- as on 27.07.2017 as due and outstanding against the respondent. It is stated that since the respondent failed to make the payment, the petitioner issued a Demand Notice dated 05.09.2017 in Form 3 under the Code which was duly delivered to the respondent on 07.09.2017 as per tracking report on file. It is stated that the Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the invoices. It is stated that the invoices as well as payments were recorded on regular basis in the running account maintained by the petitioner and this running account reflected a debit balance of Rs..2,23,89,593/- as on 27.07.2017 which is due and outstanding against the respondent and the liability is duly acknowledged by the respondent. It is stated that no notice of dispute was received, despite issue of demand notices dated 05.09.2017 and 27.09.2017. 10. In the reply filed by respondent it was alleged that as per Index of invoices filed with the petition at Annexure-4 (colly) particulars of two Bill Nos. 19 and 20 have been given which are both dated 10.11.2014 but no such Bills are annexed with the petition. These Bill Nos.19 and 20 are not even entered in the ledger account Annexure A2 relied upon by the respondent. Moreover, the particulars of Bill Nos.21 to 25 shown to dated 11.11.2014, 13.1.2014, 13.11.2014, 16.11.2014 and 02.12.2014 as per Index 4 (colly) are totally inconsistent with the entries in the ledger record of respondent being maintained by the petitioner. Aforesaid Bills are not even attached with the invoices relied upon by the petitioner. Similarly, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a market practice also. 13. It is further averred that another reason for not recalling the paddy by the petitioner was that the petitioner was expecting the market rate of the paddy to increase (as had happened in the year 2013 when the rate escalated upto around Rs. 4500/-) so that the loss of inferior paddy may be covered up. It is stated that the paddy received against the said 24 bills was stored by the company in its premises on the basis of trust and faith for around 1.7 years when petitioner instructed the respondent to use and process the said paddy and sell its output in the market and thereupon, the petitioner will settle the account on the basis of whatever are the sale proceeds. It is submitted that due to this reason, a payment of Rs.5,00,000/- was also made to the petitioner on 27.07.2017 and the said inferior and damaged paddy for 24 bills was processed to produce rice grain but since the paddy kept lying for around 1.7 years, it got further deteriorated, blackened and there was further breakage in the grain and such quality of processed rice grain could be sold only for around Rs..46,00,000/- in the market. The petitioner was informed of this fact that out of Rs.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication, reply and other documents filed as well as the arguments of the learned counsels for the petitioner and the respondent. 17. Section 9 of the Code reads as under:- "(1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under subsection (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; (b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of the operational creditor confirming that there is no payment received from the corporate debtor after 27.07.2017 i.e. no payment of unpaid operational debt by the corporate debtor has been filed at Annexure 3 (colly) of the application. Copy of the petition was also dispatched to the respondent and as per tracking report on file, the same was delivered to the respondent on 10.11.2017. The proviso to Section 9(5) of the Code mades it mandatory for the Adjudicating Authority to provide opportunity to the corporate debtor to remove the defects which was timely complied. As discussed above, these matters were covered by further documents filed by the petitioner vide diary No.318 dated 29.01.2018. The documents filed vide diary No.318 dated 29.1.2018 were carefully considered and taken on record as per order dated 29.01.2018. The respondent's contention filed vide diary No.643 dated 05.03.2018 that Annexure AA-3 - revised index of invoice as corrected and Annexure AA-4 - copy of Form AS-26 for the financial year 2015-16 were not filed under the directions of this Tribunal is, rendered infructuous especially as the total amount outstanding for the invoices of sale of paddy was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduce rice grain is not substantiated by any document. The intimation of sale of rejected goods worth Rs.1,71,02,402/- for Rs.46,00,000/- claimed to have been made to the petitioner is not supported by any proof. In these circumstances, the contention of the respondent that the liability to pay only Rs.98,87,191/- is not substantiated. 23. As discussed above, the petitioner has filed the confirmation of the respondent for the account of the respondent in the books of the petitioner from 01.04.2015 to 28.03.2017 showing closing debit balance of Rs.2,28,89,593/-. This is not disputed by the respondent. As already discussed above, the balance confirmed of Rs.2,28,89,593/- is almost the same as the balance shown of the respondent in the petitioner's books for the period 01.04.2017 to 27.07.2017. In these circumstances, the contentions raised with regard to defects in the index of invoices filed along with the application as well as in the revised index of invoice as corrected (Annexure AA-3 of diary No.318 dated 29.01.2018) do not have any significance. Therefore, we conclude that there is no plausible contention of the respondent which requires further investigation and that the "dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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