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TMI Blog2018 (9) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, Petition is to be admitted. Hence, the Adjudicating Authority admits this Petition under Section 9 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code. Petition admitted. - CP(IB) NO. 123/9/HDB/2018 - - - Dated:- 24-8-2018 - SHRI RATAKONDA MURALI, MEMBER (JUDICIAL) For The Petitioner : Ms. M. Manjusha, Adv For The Respondent : G.S. Jagannath, Adv. and V. Appa Rao, Adv. ORDER 1. The Petition is filed on behalf of Operational Creditor M/s. Shruti Impex, under Section 9 of Insolvency Bankruptcy Code, 2016, R/w Rule 6 of Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The averments of the Petition are as follows:- (1) Petitioner is Operational Creditor. M/s. Jeevan Polymers Pvt. Ltd. is the Corporate Debtor. The Registered office of the Corporate Debtor is 12/C, CIE Balanagar, Hyderabad - 500037. (2) The Authorized share capital of the Corporate Debtor is ₹ 7,50,00,000/- and paid up share capital is ₹ 5,75,66,600/-. The Corporate Debtor was registered on 16.09.1999 holding Identification Number U21020TG1999PTC032516. (3) An amount of ₹ 40,63,877/- up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r No. 66 dated 16.05.2016 and hence there is no debt of ₹ 40,63,877/- as on 14.10.2015. (3) Corporate Debtor averred that Operational creditor has not placed any proof of delivery of demand notice dated 20.12.2017 on the Corporate Debtor. (4) It is further contended that Operational Creditor is neither a person, nor an entity established under the statute and therefore, it is not entitled to claim itself as an Operational Creditor under sub-section 20 of Sec. 5 of IBC, 2016, and therefore this Petition is not maintainable. (5) It is contended that one Mr. Aziz Proprietor of M/s. Monarch Marketing introduced the purported operational creditor to Corporate Debtor and he offered his immovable property by way of Equitable Mortgage as collateral security for the limits availed by operational creditor and that Mr. Aziz represented on behalf of Operational Creditor at all times. (6) It is contended that the residual amount claimed i.e. ₹ 1,49,680/- and ₹ 86,238/- in r/o of Purchase order Nos. 223, 416 417 are LOC discounting charges incurred by the operational creditor at its bank and Corporate Debtor is no way concerned for the same as no such terms and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor has confirmed the transaction of ₹ 19,16,359/-. This is disputed. The Operational Creditor has no idea about the illegal transactions between Corporate Debtor and M/s. Monarch Marketing and other clients of operational creditor. 5. I have heard the Counsel for Operational Creditor and Counsel for Corporate Debtor. Learned Counsel for Corporate Debtor has relied on the following decisions. (i) NCLT New Delhi order passed in IB-151(PB)/2017 dated 14.07.2017 in the matter of S2 Infotech International Limited Vs Intarvo Technologies Pvt. Ltd. (ii) NCLT New Delhi Order passed in IB-311(PB/2017 dated 17.10.2017 in matter of Paundra Enterprises Pvt. Ltd. Vs HCL. 6. Counsel for Operational Creditor would contend that there is no denial by the Corporate Debtor about the supply of granules to the Corporate Debtor. Counsel contended that the Operational Creditor has given the details of material supplied to the Corporate Debtor. The details are as follows. Sl. No. Purchase order No. Date of PO. Amount of Bills (in Rs.) 01. 223 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce cum delivery challan No. 002 of 2015 dated 14.10.2015 is shown as Annexure-9. Copy of invoice cum delivery challan dated 24.12.2015 is shown as Annexure-10, Invoice dated 06.01.2016 is shown as Annexure-11 and finally the copy of invoice cum challan dated 16.05.2016 is shown as Annexure-12. 9. It is interesting to note that Corporate Debtor had not denied supply of material covered by these invoices. The only dispute raised by the Corporate Debtor that no amount is due to the Operational Creditor. However, interestingly in the written arguments, the Corporate Debtor claimed the amount of ₹ 4,11,660/- was only due to the Operational Creditor. Here Corporate Debtor is taking contradictory pleas. In the counter to the main petition, the Corporate Debtor stated that there was no amount due to the Operational Creditor under the invoices where as in the written arguments for the first time the Corporate Debtor claimed that an amount of ₹ 4,11,660/- was alone payable. The Learned counsel for Corporate Debtor would contend Mr. Aziz Sultan was the person who introduced Operational Creditor to Corporate Debtor. Mr. Aziz Sultan started M/s. Monarch Marketing Hyderabad. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hand the Corporate debtor has filed certain documents regarding ledger account which is shown at Page No. 95 of the documents filed on behalf of Corporate Debtor. The ledger account shows an amount of ₹ 19,16,359/- was said to have been paid to M/s. Monarch Marketing Hyderabad on 31.03.2017 and an amount of ₹ 15 lakhs is shown as HO Control account which is a self-made account of Corporate Debtor. There is no document filed by Corporate Debtor to establish that it was authorised to pay ₹ 19,16,359/- to M/s. Monarch Marketing Hyderabad by the Operational Creditor. The alleged payment if any to M/s. Monarch Marketing Hyderabad cannot be connected to the transactions between Operational Creditor and Corporate Debtor Company. The HO Control account of ₹ 15 lakhs was adjusted and the particulars of the same are also not known. Corporate Debtor utterly failed to connect the alleged payment of ₹ 15 lakhs to HO Control accounts to the transactions between it and the Operational Creditor. The Corporate Debtor also filed bank account copy at page Nos. 96 and 97 of Andhra Bank and Axis Bank. The payment of ₹ 10 lakhs is given credit to the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Corporate Debtor that discounting charges to be borne by Operational Creditor. The Counsel for Corporate Debtor further urged that net worth of Corporate Debtor is high and the company is earning profits and Company is having many employees. The contentions of the Learned Counsel that Corporate Debtor Company is also paying Income-tax. Here the question whether Corporate Debtor committed default or not. The net worth of Corporate Debtor Company is immaterial for deciding the same. The operational Creditor has proved that Corporate Debtor has not paid the amount covered by invoice No. 66 and the amount deducted towards discounting charges while honouring the LOC, which comes to ₹ 40,63,877. 13. The contention of the Learned Counsel for Corporate Debtor that the amount said to have been due by the Corporate Debtor as per demand notice differs with the amount shown in Form No. 5 filed under Section 9 of the Code. The contention of the Counsel that in the Demand Notice Operational Creditor alleged that the amount payable by Corporate Debtor as on 14.10.2015 was ₹ 40,63,877/- whereas in Form 5 in the particulars of claim, the amount said to have been payable by Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Debtor that whatever amount due was paid and that only a sum of ₹ 4 lakhs remains to be paid. No credence can be given to the contentions of the Corporate Debtor that it has paid the remaining outstanding debt except ₹ 4 lakhs. I have discussed at length supra, the Corporate Debtor failed to prove discharge. 18. The next contention of the Corporate Debtor that copy of the Petition was not sent to the Corporate Debtor by Operational Creditor as required under Rule 6(2) of I B (Application to Adjudicating Authority) Rules, 2016. The contention of the Learned Counsel that Rule 6(2) of I B (Application to Adjudicating Authority) Rules, 2016 provides that Applicant shall despatch forthwith a copy of the Application filed with the Adjudicating Authority by registered port or speed post to the registered office of the Corporate Debtor. However, Operational Creditor would contend it was sent to the Corporate Debtor by Registered Post. Notice was ordered to the Corporate Debtor. A memo was filed by Operational Creditor that notice along with Petition copy was served on the Corporate Debtor. The counsel for Operational Creditor filed memo along with covering le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines person which includes entity established under a statute. Operational Creditor is shown as M/s. Shruti Impex , a sole proprietary firm. This firm is said to have been established under a statute. The copy of certificate of provisional registration GST certificate is filed. It is shown as Annexure-3 at page No.7. It is dated 28.06.2017. This certificate is issued under the provisions of an Act. The firm falls under Clause (g) of Section 3(23). The question whether Corporate Debtor is liable to pay operational debt to the Petitioner/Operational Creditor. Section 5(21) defines operational debt as follows: 5(21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority ; This is a claim in respect of provision of goods supplied to the Corporate Debtor. Therefore, it is an operational debt. The Petitioner is an entity established under a Statute and comes within the definition of person. Therefore, Petitioner is an operational creditor. Thus, Operati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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