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TMI Blog2018 (7) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... e regarding goods given by the Operational Creditor to the Corporate Debtor and that the Pendency of Mediation Proceedings initiated at this instance bar the proceedings under IB Code is found devoid of merit. The Operational Creditor had not received the outstanding dues from the Corporate Debtor, and the requirements as prescribed under IB Code have been completed by the Petitioner. The operational creditor has not proposed the name of any insolvency professional, but under section 9 of the insolvency in the bankruptcy code, it is not mandatory to propose the name of insolvency professional - this Petition deserves 'Admission.' Hence Admitted. - Company Petition No. (IB) 160/ALD/2017 - - - Dated:- 2-5-2018 - MR. V.P. SINGH AND MS. SAROJ RAJWARE, JJ. For The Applicant/Operational Creditor : Sh. Anshul Kumar Singhal, Adv. For The Respondent/Corporate Debtor : Sh. Pawan Kishor, Adv. V. P. Singh Member Judicial ORDER V.P. Singh, Judicial Member :- The present petition is filed under Section 9 of Insolvency and Bankruptcy Code,2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 by the Applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24% per annum. Copy of the Ledger account for the period starting from 1 October 2016 to 10 February 2017 is annexed as annexure 6. The Ledger account has been by the respondent company as it would be apparent from the endorsement made on the Memo of Confirmation of account annexed above. (v) The respondent company issued for cheques of State Bank of India of ₹ 4,00,000 each and the said cheques were put for clearing on the directions of the respondent company on 7 February 2017. But the said cheques were returned dishonoured with the endorsement payment stopped by the drawer. (vi) When the Cheque was dishonoured, the petitioner company had again approached the respondent company informing the respondent about the dishonour of the Cheque and also requested to make the payment immediately. (vii) The petitioner Company has filed a complaint u/s 138 N.I act on account of dishonour of four cheques. (viii) Petitioner further stated that they had sent statutory Demand Notice asking for payment of outstanding dues dated 04-09-2017. But the notice so sent to the Respondent Company was never replied. 5. It also matters of record that as per settled practice by order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment with request to reconciliation of account is annexed as annexure 7 (viii) Corporate Debtor further stated that being annoyed and frustrated by stop payment of cheques, Director of Operational Creditor Mr. Amit Kumar initiated proceedings under section 138(b) of Negotiable Instrument Act against Corporate Debtor Company getting the cheque dishonoured due to stop payment and sent a notice dated 17-02-2017, Respondent by their letter dated 02-03-2017 replied to notice issued by the Applicant/Operational Creditor under section 138(b) of NI Act. (A copy of the reply is annexed as Annexure No-8 of the Counter Affidavit). (ix) However, Director of Operational Creditor Mr. Amil kumar was not ready for any reconciliation and filed a complaint under section 138 of NI Act, which was registered as Complaint Case No. 2224 of 2017 in which vide order dated 15-05-2017 Corporate Debtor and its Directors were summoned to face trial under section 138 of NI Act. (x) That the proceedings of the Complaint above have been challenged bv one the Director namely Mr. Neeraj Gupta in Criminal Misc.Application No 36758/2017 (titled as Neeraj Gupta v. State of UP) in which hon'ble Allahab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Mediation and Conciliation Center, High Court Allahabad in regards to the complaint case under NI Act. (ii) Further stated that it is relevant to point out that the applicant operational creditor categorically denies the execution of such debit notes. The Operational Creditor had further obtained a report of the Forensic Signature Expert Namely Dr. V.C Mishra, by providing the copy of the debit notes dated 30-09-2016 and 16-12-2016 along with the proforma signature of the Director namely Amit Kumar along with his opinion. Further informed that in the report it is reported that the signature appended to the. debit notes of Amit Kumar does not match with the actual specimen signature of Amit Kumar. Therefore signature placed on debit notes are forged. (A True Copy of the Signature Expert Report dated 16-02-2018 is being filed herewith and marked as Annexure.No-RA-1) (iii) That the Debit/credit notes are alleged to be of the date 30-09-2016 and 16-12-2016 and According to the provision of the U.P Act and the rules framed their under, the same could have been entered in the books of account maintained for accounting for the tax purpose. The entry of debit notes dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Authorized representative of Operational Creditor accepting details of transaction entered in ledger, ledger account annexed by Corporate Debtor should bear sign and stamp of Authorized Representative of Operational Creditor which would have proved that Operational Creditor without having any objection accepted the details oi transaction, in which corporate debtor has entered details of debit note dated 16-02-2016. The ledger which is maintained Corporate Debtor has no legal validity unless it is accepted by the authority in favour of whom such account is maintained. It should hold proper sign and seal of the operational creditor for balance confirmation. 12. The Corporate Debtor has itself admitted and confirmed the ledger account maintained by the Operational Creditor of Corporate Debtor for the period 01-10-2016 to 10-02-2017. The Corporate debtor must have taken objection about not mentioning of details of debit notes dated 16-02-2016 while approving ledger maintained by the operational creditor. Further from record it appears that Reconciliation of ledger account was done as requested by the Corporate debtor through letter dated 09-02-2017 on 10-2-2017 which is acknowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was pre-existing dispute relating to the alleged debt amount. The corporate debtor has itself issued the balance confirmation letter wherein he has accepted the liability of the alleged dues of ₹ 85,53,570 along with interest at the rate of 24% per annum. 18. Given above said facts and principle laid down in above cited case the contention of the respondent that there was a pre-existing dispute regarding goods given by the Operational Creditor to the Corporate Debtor and that the Pendency of Mediation Proceedings initiated at this instance bar the proceedings under IB Code is found devoid of merit. 19. The Operational Creditor had not received the outstanding dues from the Corporate Debtor, and the requirements as prescribed under IB Code have been completed by the Petitioner. The operational creditor has not proposed the name of any insolvency professional, but under section 9 of the insolvency in the bankruptcy code, it is not mandatory to propose the name of insolvency professional. 20. On the basis, we are of the view that this Petition deserves 'Admission.' Hence Admitted. 21. Accordingly, under Section 9 of the Code we declare a moratorium f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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