9911796707
TMI Blog2018 (9) TMI 1228X X X X Extracts X X X X X X X X Extracts X X X X ..... due to Operational Creditor as per averments in the Petition. (4) It is averred that during the course of business transactions, the Operational Creditor had supplied PET Bottle Grade Granules vide four purchase orders on various dates mentioned against each. However, Corporate Debtor paid only a part of the Bill and the balance amount is still outstanding. The details are mentioned hereunder:- Sl. No. Purchase order No. Date of PO. Amount of Bills (in Rs.) Amount paid by Corporate Debtor (in Rs.) Amount outstanding to Operational Creditor 01. 223 14.10.2015 61,34,012/- 59,84,332/- 1,49,680/- 02. 416 19.01.2016 18,71,100/- 18,71,100/- 03. 417 20.01.2016 31,24,944/- 30,37,806/- 86,238/- 04. 66 16.05.2016 38,27,959/- Not paid 38,27,959/- Total due 40,63,877/- (5) It is also averred that Corporate Debtor issued mail dated 23.05.2016 informing the Operational Creditor that they have arranged Letter of Credit dated 21.05.2016 for an amount of Rs. 19,13,980.00 towards part payment of the total debt due to the Operational Creditor but failed to honour the same. (6) It is averred that demand notice dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is contended that the amount claimed is same as per demand notice dated 20.12.2017 and Form 5. Further Operational Creditor contends that the Corporate Debtor is aware about the service of the notice but did not respond to the notice. (c) Further Operational creditor contends the source of information that Mr. Aziz extended collateral security to avail limits by Operational Creditor in the Federal Bank was shared by Mr. Aziz with a mala fide intention to conspire and withhold the funds of Operational Creditor. Further Petitioner contends that Mr. Aziz does not have any right over the transactions taken place between operational creditor and Corporate Debtor. (d) It is also contended that Mr. Aziz Sultan was only acting in the capacity of a marketing executive and he was kept in loop of the transactions only for the purpose of delivering the goods. (e) The Petitioner avers that the Corporate Debtor agreed to pay the LOC discounting charges in their ledger account statements. The terms of payment was immediate on delivery, though bill of exchange may mention 90 days credit only to comply banking norms, but if the money is withdrawn from the bank within 90 days it results in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 86,238/-. It is contended by Operational Creditor that for Voucher No. 66 dated 16.05.2016 total amount of Rs. 38,27,959/- is not at all paid. Thus, the amount alleged to be due by the Corporate Debtor to the Operational Creditor is Rs. 40,63,877/-. 8. What are the documents relied by Operational Creditor to prove that the said amount of Rs. 40,63,877/- was due as on the date when the Demand Notice in forms. 3 & 4 was issued to the Corporate Debtor. (a) The Operational Creditor has filed ledger account of the Corporate Debtor maintained in the books of Account. This is shown at page 18 and marked as Annexure-7. This ledger copy pertains to the Corporate Debtor. The amount of Rs. 40,63,877/- was balance payable after adjusting the amount received from the Corporate Debtor. (b) The Operational Creditor has filed the invoice cum delivery challan in respect of the transactions from the beginning carried on with Corporate Debtor and the details are found in the ledger account. In other words Operational Creditor opened separate ledger account in the name of Corporate Debtor starting from 24.08.2015. The Operational Creditor has filed the delivery challans in respect of all the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow about payment to Mr. Aziz Sultan. On the other hand the contention of the Learned Counsel for Operational Creditor that it has nothing to do with Mr Aziz Sultan in respect of material supplied to the Corporate Debtor. Counsel contended Mr. Aziz Sultan was said to have been running separate business under the name and style of Monarch Marketing Hyderabad. 10. The contention of Learned Counsel for Corporate Debtor that Mr. Aziz Sultan had introduced Operational Creditor to Corporate Debtor. He has also given his immovable property as security for the loan availed by the Operational Creditor. In that connection, on the advise of Operational Creditor, the Corporate Debtor made payment in respect of amount payable under voucher No. 66 dated 16.05.2016. I have seen page Nos. 13 & 32 of the documents filed by Operational Creditor. Page 13 is a part of Form 3 wherein Operational Creditor strongly denied any connection with M/s. Monarch Marketing Hyderabad, while referring to the ledger account furnished by Corporate Debtor in respect of transactions with the Operational Creditor. The Corporate Debtor furnished ledger copy opened on 24.08.2015 in the name of Operational Creditor. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scounting charges of Rs. 1,49,680/- and Rs. 86,238/- was also not paid. Thus total amount due from Corporate Debtor was Rs. 40,63,877/-. 12. The contention of the Counsel for Corporate Debtor that whatever amount collected towards discounting charges by the bank while making payment to the Operational Creditor, LOC discounting charges cannot be held to be due by the Corporate Debtor. Counsel contended Corporate Debtor issued LOC for the total bill amount. The discounting charges is levied on the side of Operational Creditor. Therefore there is no liability on the Corporate Debtor. Here, LOC is issued by Corporate Debtor. However, bank deducted discounting charges while making payment to the Operational Creditor. The operational creditor has not received full payment under LOC issued by Corporate Debtor for the material supplied to the Corporate Debtor. There is no question of penalizing Operational Creditor who supplied material to the Corporate Debtor. The discounting charges if any to be borne by Corporate Debtor because it has issued the LOC. So, balance if any is payable by the Corporate Debtor only. The Operational Creditor is entitled for the total bill amount. Thus, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. On the other hand, contention of the Counsel for Operational Creditor that Demand Notice in Forms 3 & 4 was issued to the Corporate Debtor and it was served. Demand Notice in Forms 3 & 4 is shown as Annexure-6. This Demand Notice dated 20.12.2017 was served on the Corporate Debtor. The Operational Creditor has filed postal track record which is shown as Annexure-19 at page No. 53 of the petition. It is clear from the postal track report, the demand notice issued to the Corporate Debtor was delivered. Therefore, there is no merit in the contention of the counsel for Corporate Debtor that Demand Notice was not served on the Corporate Debtor. 17. It is pertinent to note here that Corporate Debtor never raised any dispute with Operational Creditor prior to the Demand Notice. For the first time, Corporate Debtor raised dispute in the reply/counter filed in the main petition that whatever amount due was paid to the Operational Creditor and that no amount was payable to the operational creditor. Thus, Corporate Debtor failed to show any dispute was pending with regard to the claim prior to issuing of Demand Notice. The subsequent defence taken by Corporate Debtor after Petition was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a partnership; (f) a limited liability partnership; and (g) any other entity established under a statute; and includes a person resident outside India; The contention of the Learned Counsel the Operational Creditor does not fall in any of the categories stated above. Thus Counsel contended present petition cannot be maintained by Petitioner on the grounds that Petitioner is not Operational Creditor. 20. The question whether Petitioner falls within the definition of Operational Creditor. The contention of the Learned Counsel for Petitioner that Operational Creditor is a proprietary firm. It is an entity established under a statute. The Learned Counsel for Operational Creditor would contend that proprietary firm can maintain the present petition. He has referred to section (2) of I&B Code. He has referred to latest amendment to section (2) which includes the proprietorship firms. The contention of the learned counsel by way of amendment Clause (f) is added to Section (2) of the Code which includes partnership firms and proprietorship firms. Thus, the provisions of the I&B Code would apply to proprietorship firms. 21. Section 3(23) defines "person" which includes entity esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (3) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) That the order of moratorium shall have effect from 24.08.2018 till the completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under Sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, whichever is earlier. (5) That the public announcement of the initiation of Corporate Insolvency Resolution Process shall be made immediately as prescribed under section 13 of Insolvency and Bankruptcy Code, 2016. That this Bench hereby appoints Ms. G. Kalpana, having registration number IBBI/IPA-001/IP-P00756/2017-18/11288 residing at 16-11-19/4.,G-1, Sri Lakshmi Nilayam, Saleem Nagar Colony, Malakpet, Hyderabad-500036 Mobile: 9962568858; E-mail: [email protected] as Interim Resolution Professional to carry the functions as mentioned under the Insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
