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TMI Blog2019 (5) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... For The Corporate Debtor : Mr V. Ramakrishnan, Sr. Counsel for M/s M/s. R And P Partners, Counsel ORDER CH. MOHD SHARIEF TARIQ, MEMBER (JUDICIAL) 1. Under Adjudication is CP/763/IB/2018 that has been filed by the Operational Creditor under Section 9 of the Insolvency Bankruptcy Code 2016 (in short, 'I B Code, 2016') r/w Rule 6 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The prayer made is to admit the Application, to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, declare moratorium and appoint Interim Resolution Professional. 2. Heard the Counsels for the Operational Creditor and Corporate Debtor and perused the record. 3. The Operational Creditor has claimed an amount of ₹ 27,79,59,587.21 as outstanding against the Corporate Debtor as per Ledger Account for the period 25.02.2015 to 20.03.2018 in respect of mobile handset, and from 01.04.2015 to 20.03.2018 in respect of accessories, which the Corporate Debtor has failed to pay. 4. The brief facts of the case are that the Operational Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pertaining to the supply of mobile handsets. 8. The Learned Counsel for the Operational Creditor has referred to one of the Invoices placed at page 682 of Volume-3 of the typed set filed with the Application which goes to show that the Operational Creditor has raised the Invoice on the Corporate Debtor and the consignment used to be delivered at the address of M/s. Indus Mobile Distribution Private Limited as reflects from the said Invoice. This pertains to the delivery of the accessories to the Corporate Debtor viz., M/s. Indus Mobile Distribution Private Limited and similar is the position of the delivery of rest of the Invoices. 9. The Learned Counsel for the Operational Creditor has also referred to the document dated 09.10.2015 placed at Page 723 of Volume-3 of the typed set filed with the Application which reflects that as per M/s. Optiemus Infracom Limited's closing balance as on 30.09.2015, an amount of ₹ 4,48,983.084 is the outstanding being confirmed by the Corporate Debtor which bears the signature of the Authorized Signatory on the Letter Head. 10. The Learned Counsel for the Operational Creditor has also referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor to the sister concern as per the arrangement that has been made by the Operational Creditor and the Corporate Debtor. 14. The Learned Counsel for the Corporate Debtor has referred to a Certificate dated 03.09.2018 placed at Page 89 of the typed set filed with the counter statement which indicates that as per the books of account and other records of M/s. Indus Mobile Distribution Private Limited for the Financial Years 2015-2016 and 2016-2017. It has been certified that goods (stocks) that were purchased by M/s. Indus Mobile Distribution Private Limited from the Operational Creditor viz., M/s. Optiemus Infracom Limited were consecutively distributed/sold only to M/s. Univercell Telecommunications Private Limited. 15. Learned Counsel for the Corporate Debtor has referred to the Deed of Assignment dated 07.04.2015 signed between M/s. Indus Mobile Distribution Private Limited viz., Corporate Debtor and M/s. MPS Telecom Retail Private Limited, which is stated to be a sister concern of the Operational Creditor and the same has become wholly owned subsidiary of the Operational Creditor. As per the said Deed of Assignment, all Intellectual Property Ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor viz.. M/s. MPS Telecom Retail Private Limited, in which the Operational Creditor is not a privy to the said agreement, so any agreement to which the Operational Creditor is not a party cannot be used as evidence against the Operational Creditor. The Learned Counsel for the Corporate Debtor has referred to these agreements with the submissions that there is sufficient material to lift the corporate veil as far as the Operational Creditor is concerned. At this point, it is noted that this Adjudicating Authority is having summary jurisdiction and while admitting or rejecting the Applications filed under Sections 7 and 9 of the I B Code, 2016, there is no requirement or has any statutory compulsion to lift the corporate veil as far as the claim of the Operational Creditor is concerned. In other words, it is a bounden duty of this Authority to see if there is a debt which is outstanding, due and payable and default has been committed, then, there may not be any reason for the Adjudicating Authority to go into the details of the agreements to which the Operational Creditor is not the privy. 18. Learned Counsel for the Corporate Debtor again tried to convince this Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and circumstances of the case on hand none of the grounds are available to proceed to lift the corporate veil of the Operational Creditor. Therefore, the arguments of the Learned Counsel for the Corporate Debtor are misleading and stand rejected. 23. Besides the above, the Learned Counsel for Corporate Debtor has submitted that notice under Section 8 of the I B Code, 2016 has not been delivered on the Corporate Debtor and further stated that the proof of sending Section 8 notice and delivery thereof, has not been placed on record and the non-issuance of notice under Section 8 of the I B Code, 2016 is sole ground for rejection of the Application filed by the Operational Creditor. In this correction, he has referred to the judgments given by Hon'ble NCLAT (i) Dilip Singh v. Nuvoco Vistas Corporation Ltd. (2018) 149 SCL 731/98 , wherein it has been held that if the demand notice under Section 8(1) of the I B Code, 2016 would have been served on the Corporate Debtor, the parties would have settled the matter, and based on the said reasoning, the Hon'ble NCLAT has set aside the Order passed by the Adjudicating Authority; and (ii ) Sunil Sanghavi v. Cyte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning to the admission of liability is not placed on record, no reliance can be placed on Photostat copy of the said document. 27. MA/199/2019 has been filed in CP/763/2018 by the Operational Creditor for placing on record a certificate dated 05.02.2016, issued by the Auditor of the Corporate Debtor certifying the Ledger Balance of the Corporate Debtor. The texts of which is reproduced as follows :- CERTIFICATE We have examined the books and other records of Indus Mobile Distribution Private Limited with Registered Office at 281, TTK Road Alwarpet Chennai 600 018 and certify that the Ledger Balance of 2609 - Optiemus Infracom Ltd-Telemart Division is ₹ 27,08,58,520. (Credit) This certificate is being issued to the company as per request by Optiemus Infracom Ltd for submission to their Bankers. For Brahmayya Co., Chartered Accountants (From Registration Number: 000511S) Sd/... (K. Jitendra Kumar) Partner, Membership No.201825 Place: Chennai Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en placed on record by the Learned Counsel for the Respondent/Corporate Debtor that the Applicant/Operational Creditor has failed to state as to why the said certificate was not filed along with Section '9' Application and prayed to dismiss the Application filed by the Applicant/Operational Creditor. The Counsel for the Corporate Debtor has relied upon the judgment passed by the Hon'ble High Court of Delhi in Council of Institute of Chartered Accountants of India v. B. Ram Goel [2001] 29 SCL 257, wherein the Hon'ble High Court has held that disclosure of information which would not have otherwise come within his knowledge, but for his professional appointment, without consent of his client is an act of grave professional misconduct . However, the said ruling cannot be made applicable to the facts and circumstances of the present case, as the texts of the certificate dated 05.02.2016 itself shows that the certificate was issued to the Corporate Debtor, as per the request made by the Operational Creditor for submission to their Bankers. Therefore, the Learned Counsel for the Corporate Debtor could not rebut the factum of the issuance of the certificate dated 05.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led with the Application. Thus, the defence projected by Learned Counsel for the Corporate Debtor is spurious and is not substantiated with any documentary proof; therefore, the same stands rejected in toto. 33. The Operational Creditor has fulfilled all the requirements of law for admission of the Application. This Bench is satisfied that the Corporate Debtor has committed default in making payment of the outstanding debt as claimed by the Operational Creditor. Therefore, the Application is admitted and the commencement of the Corporate Insolvency Resolution Process is ordered which ordinarily shall get completed within 180 days, reckoning from the day this order is passed. 34. The moratorium is declared which shall have effect from the date of this Order till the completion of Corporate Insolvency Resolution Process, for the purposes referred to in Section 14 of the I B Code, 2016. It is ordered to prohibit all of the following, namely: - (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitrat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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