9911796707
TMI Blog2018 (10) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... sued from its Bank dated 27-12-2017 by way of Supplementary Affidavit dated 01-02-2018. However, no name of the Insolvency Resolution Professional is proposed. Therefore, the question of compliance with Section 9(5)(i)(e) does not arise. All other requirements as per Section 9(5)(i)(a) to (c) are seen complied with and since the dispute raised is found not bona fide, this Application is liable to be admitted. - C.P. (IB) No. 187/KB/2018 - - - Dated:- 18-9-2018 - SHRI JINAN K.R., MEMBER (JUDICIAL) For The Petitioner : S. Mitra, Advocate, A. Bhalotia, Advocate and T. Saraf, Advocate For The Respondent : Gaurav Singh, Advocate ORDER Per Shri Jinan K. R., Member (Judicial) 1. This is an application filed under Section 9 of the Insolvency Bankruptcy Code, 2016 (In short, I B Code, 2016) by the Operational Creditor, Shri Krishna Agri Projects Private Limited for initiating Corporate Insolvency Resolution Process (In short, CIRP) as against the Corporate Debtor/Feedatives Pharma Private Limited, claiming that an amount of ₹ 7,06,839/- (Rupees Seven lac Six thousand eight hundred thirty nine only) is the outstanding amount due from the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor was, on most occasions, rotten and unusable. In view of raising dispute, the alleged debt is not admitted. Rather, the same is outrightly denied and the Application is thus liable to be rejected. 6. The particulars given by the Applicant in the Application are insufficient. Shri Sourabh Rungta, who is the authorised signatory, who filed the Application, is operating the Company belonging to Rungta family and this Rungta family is conducting their business under the name and style of three Corporate entities, namely, Basukinath Agro Pvt. Ltd., Shri Krishna Agri Projects Pvt. Ltd, Operational Creditor, Applicant, as well as Vishnupriya International, proprietorship firm of Mrs. Anita Rungta. Since they are running business in the name of different entities, the Corporate Debtor is exercising difficulty to indicate that all the quantities of goods under the cover of each entities are defective. The Rungta family is engaged in selling basic agriculture raw materials consumed by the Poultry in the name of the three different entities and by dealing with their customers, including the Respondent Company, the Rungta family used to attach their juristic relationship with either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany had been the cause of poor production is evident from the test report which is annexed with the reply and marked with letter D . Upon the above said contentions, the Respondent prays for dismissal of the Application. 7. The Operational Creditor filed the rejoinder denying the averments raised by the Corporate Debtor in his Reply affidavit and reiterates the contentions in the application. The Operational Creditor further submits that the dispute raised by the Corporate Debtor is not at all bona fide. The Applicant also contends that there are no random transactions as alleged and three entities referred to in the Reply affidavit are all in the nature of separate legal entities and the transactions between the above said three entities including the Applicant herein with the Respondent are all in the nature of separate and independent transactions without there being any connection with each other. There is no control of the aforesaid three entities by the alleged Rungta family. It is denied that the quality of goods supplied by the Applicant were found or could have found to be inferior as alleged or at all. It is also incorrect to say that Rungta family used to issue chal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Loss incurred by the Corporate Debtor due to issuance of low quality ingredients not accounted for (iv) Non-lifting of low quality material from the premises of Corporate Debtor which is already rotten. The Corporate Debtor is going to destroy the same unless the Operational Creditor takes back the same within next seven days (v) The Operational Creditor made an intentional clumsy situation by supplying same materials through different company names which does not bear any batch no., manufacturing date or any make in the bags/packets (vi) Maximum materials were supplied without the requisition of the Corporate Debtor (vii) There was no pre-agreed payment terms, hence question of interest of delayed payment does not arise at all (viii) The invoice/challan of the Operational Creditor does not carry any chargeable rate of interest in case of delayed payment (ix) Moreover, after Income Tax raid at the Office of the Operational Creditor, the Operational Creditor have planned for a different schedule for credit note adjustment and payment schedule which till date has not been reflected (x) There are several other matters with records available for ready reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the Hon'ble Supreme Court has held that So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application for initiation of CIRP . In this case, existence of a true dispute as alleged is not established. The dispute raised is found hypothetical. Therefore, the E-Mail not at all strengthened the contentions of the Corporate Debtor that the goods delivered as per Annexure A invoices were of inferior quality or that the Corporate Debtor has raised dispute as against the goods delivered to Corporate Debtor by the Operational Creditor. 14. One another document which was relied upon is the test result for proving that the quality of the goods supplied to the Corporate Debtor is of inferior qualities.. Annexure D is the analytical report referred to on the side of the respondent. It is a test result of goods supplied on 05-09-2014. Mere production of the test result also does not improve the respondent's contention regarding the quality of goods. Whether it relates to the goods supplied as per the Annexure A invoices, there is no supporting proof. Moreover, there is no proof produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is run by one Rungta family and since the different entities are sending bills, the Corporate Debtor is facing difficulty to assess which of the aforesaid entities have supplied the goods and thereby unable to raise the dispute, has no legal force at all. The contention that the Operational Creditor has delivered the goods to the Corporate Debtor faithfully is also proved by the Operational Creditor. Therefore, having failed in proving a pre-existing dispute, as laid down in Mobilok Innovations Pvt. Ltd., I do not find any merit in the dispute raised on the side of the Corporate Debtor. 19. Since the respondent failed in proving a pre-existing dispute, the next question is whether the Operational Creditor has succeeded in proving the compliance of Section 9 (5) of the IB code, 2016. To maintain an application of this nature, the Operational creditor has to prove that the Application filed under Section 9 of the IB Code, 2016 is complete, that there is no repayment of the unpaid operational debt, that the invoices of which the claim is made, has been received by the Corporate Debtor, and that there is no disciplinary proceedings pending against the proposed Resolution Profession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (v) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium period. (vi) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. (viii) Provided that where at any time during the Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. (ix) Necessary public announcement as per Section 15 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
