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TMI Blog2019 (1) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor) for initiating the Corporate Insolvency Resolution Process (CIRP) in the case of Quickdel Logistics Private Limited (Corporate Debtor). As per master data at page 101 of the petition, the registered office of the Corporate Debtor is at Plot No.31, Udyog Vihar, Sector 18, Gurugram. The jurisdiction lies with this Bench of the Tribunal. 3. It is stated that on 04.04.2016, a security services agreement was executed between the Corporate Debtor and the Operational Creditor for providing security services at the premises of the Corporate Debtor in the States of Tripura, Assam and Mizoram. In Part 4 of Form 5 the total amount of debt is stated to be Rs.13,04,521/-. The details of the amount remaining outstanding out of the invoices is stated to total to Rs.11,29,565/- and further [email protected]% per month up to 02.01.2018 is stated to amount to Rs.1,74,956/- and the total outstanding is thereby computed at Rs.13,04,521/- (see also Annexure No.3 of the petition). The dates of default are stated to be from 15.11.2016 to 15.05.2017. A legal notice is stated to be issued on 02.08.2017 (Annexure No.6) (colly) of the petition). The e-mails from the Operational Creditor to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y responsible for theft of valuables and costly shipments. Reference in this context has been made to e-mails dated 23.08.2016 and 10.08.2016. It is submitted that there are several instances of violation of agreement by the Operational Creditor and that as per the terms of the agreement, the Operational Creditor was required to send invoices alongwith duly attested attendance sheet, challan regarding payment of PF, ESIC and service tax qua the security guards deployed with the Corporate Debtor but the Operational Creditor did not fulfil the above obligation. 7. It is also averred that there was a change in the management of the Operational Creditor company in the month of August, 2016 and during the verification of documents by the new management of the Corporate Debtor, it was noticed that even the attendance register relating to the alleged security staff was not properly maintained and the same is contrary to the records maintained by the Operational Creditor. It is stated that the Corporate Debtor lodged FIR regarding collusion and criminal breach of trust against vendor and the staff members of the Corporate Debtor relating to excess payment made to vendors without proper s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which condition was not satisfied by the Corporate Debtor. 10. Additional affidavit was filed by the Corporate Debtor by Diary No.4413 dated 13.11.2018 stating that there are glaring inconsistencies and contradictions in the various communications by the Operational Creditor to the Corporate Debtor for the amount that is allegedly due and payable by the Corporate Debtor to the Operational Creditor and that the amount claimed is based on fraudulent and forged calculation and that despite emails dated 01.02.2016 and 02.02.2016, the soft copies of the invoices raised were not given. Reference is made to email dated 20.12.2016 that the Operational Creditor deliberately created a situation of allegedly not being paid which lead to theft at the warehouses of the Corporate Debtor as the guards deployed at the sites abandoned without any information and various e-commerce vendors to whom the Corporate Debtor had provided services imposed debit note to the tune of Rs.38.00 crores approx. 11. During the course of the hearing, the learned counsel for the Operational Creditor has argued that there was no reply to the Demand Notice and that the issue raised in the reply regarding incident o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Registrar of Companies (Annexures P- 11 and P-12 of rejoinder - Diary No.2844 dated 03.08.2018.). It was therefore, argued by the learned counsel for the Operational Creditor that the address of the Corporate Debtor was changed much after the petition was filed on 29.01.2018 and therefore, service of the demand notice upon the registered address as shown in the then master data was a valid service. The learned counsel for the Corporate Debtor has argued that the relocation was done before 16.02.2018. However, no evidence in this regard is furnished. In view of the above discussion, the service by speed post at the then registered address of the Corporate Debtor is held to be a valid service. 15. The next issue for consideration is whether there was a dispute. The matter is being examined with reference to the provisions of the Code and the judgement of the Hon'ble Supreme Court in Mobilox Innovations Private Limited Versus Kirusa Software Private Limited (2017)140 CLA 123(SC). In para No.40 the Hon'ble Supreme Court held as under:- "It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly) of the petition) starting from 31.10.2016 to 30.04.2017 total to Rs.16,21,739/-. We have already observed that the ledger account filed does not contain the details of the invoices. Therefore, it cannot be said that the invoices issued by the Operational Creditor from 31.10.2016 to 30.4.2016 are recorded in the ledger account especially since the amounts of invoices recorded in the ledger on 15.11.2016, 19.12.2016 and 27.12.2016 do not tally with the amount of the invoices issued by the Operational Creditor for the period 31.10.2016 to 30.04.2017. Therefore, the plea of the Corporate Debtor that the complete sum is paid and on the other hand a sum of Rs.2,50,000/- is recoverable from the Operational Creditor cannot be accepted. 17. The learned counsel for the Corporate Debtor has argued that amongst other disputes the issue is of continuous theft of shipment and appointment of unverified and unprofessional guards who resorted to absconding from duty on regular basis thus being directly/indirectly responsible for theft of valuable and costly shipments. The reference has been specifically made to e-mail dated 10.08.2016 and 23.08.2016. We find that the e-mails relate to untrace ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reas as per the terms of the agreement, the payment was required to be made within 15 days of the date of receipt of the bills. The Corporate Debtor filed an additional affidavit by Diary No.4413 dated 13.11.2018 but no further evidence was filed to dispute the reply of the Operational Creditor, discussed above. 20. In the additional affidavit dated 13.11.2018, reference has been made to e-mails dated 01.02.2016 and 02.02.2016 and it is stated that the Operational Creditor requested the Corporate Debtor for soft copies of the invoices raised, which were not given in spite of the repeated follow ups. The security services agreement is dated 04.04.2016 (Annexure No.4 of the petition). Therefore, the e-mails related to a period earlier to the security services agreement and are not relevant for the present case. In the additional affidavit supra, reference is also made to e-mail dated 20.12.2016 to state that the Operational Creditor deliberately created a situation of allegedly not being paid which led to the theft at warehouses of the Corporate Debtor as the guards deployed at the sites abandoned without any information, and ecommerce vendors from whom the Corporate Debtor has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 to April, 2017 only whereas the bank certificate is for the receipts from the Corporate Debtor for the period 15.11.2016 to 19.04.2017. Therefore, the details cannot be directly compared and the submissions of the Corporate Debtor are not acceptable. However, even though direct correlation is not possible, we have endeavoured to make the correlation on the basis of the details available in the record. 25. The details of receipts from the corporate debtor as certified in the bank certificate dated 20.12.2017(supra) are as follows:- Transaction Date Mode of payment Amount (INR) 15.11.2016 NEFT 286184 21.12.2016 NEFT 286184 17.01.2017 NEFT 262783 04.02.2017 NEFT 256972 29.03.2017 NEFT 150000 19.04.2017 NEFT 100000 26. The details of the invoices against which payment is adjusted as given in para No.6 of the demand notice (supra) are as follows:- Invoice No. Invoice amount (Rs.) Payment received (Rs.) Due amount (Rs.) Date of invoice Date of payment KOLCI/00 1089/1617 2,91,249 2,62,216 29,033 September, 2016 4 February, 2017 KOLCI/00 1354/1617 2,91,249 1,53,061 1,38,188 October, 2016 30 March, 2017 KOLCI/00 1532/1617 2,87,619 2, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete; (b) there is no payment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under subsection (4), if any." 30. In the present case, no averments have made before us that the application under Section 9(2) is not complete. We have gone through the contents of the application and find the same to be complete. As discussed above, there is an unpaid operational debt amounting to Rs.13,04,521/- comprising of outstanding amount of invoices of Rs.11,29,565/- and interest at 1.5% per month up to 02.01.2018 of Rs.1,74,956/- (Interest @ 1.5% per month is provided for in Clause 4 of the Security Services Agreement dated 04.04.2016). We hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as the Interim Resolution Professional (IRP). The operational creditor is not obliged to propose the name of Resolution Professional to be appointed as such. Section 16(3)(a) of the Code says that where the application for corporate insolvency resolution process is made by an operational creditor and - a) no proposal for an interim resolution professional is made, the Adjudicating Authority shall make a reference to the Board for the recommendation of an insolvency professional who may act as an interim resolution professional; b) x x x x x Sub-section (4) of Section 16 says that the Board shall, within ten days of the receipt of a reference from the Adjudicating Authority under sub-section (3), recommend the name of an insolvency professional to the Adjudicating Authority against whom no disciplinary proceedings are pending. 36. In this regard a letter bearing File No. 25/02/2018-NCLT dated 28.12.2018 has been received from the National Company Law Tribunal, New Delhi forwarding therewith a copy of letter No. IBBI/IP/ EMP/ 2018/02 dated 25.12.2018 along with the guidelines and the panel of resolution professionals approved for NCLT, Chandigarh Bench for appointment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor'; v) It is hereby directed that the 'Corporate Debtor', its Directors, personnel and the persons associated with the management shall extend all cooperation to the Interim Resolution Professional in managing the affairs of the 'Corporate Debtor' as a going concern and extend all cooperation in accessing books and records as well as assets of the 'Corporate Debtor'; vi) The Interim Resolution Professional shall after collation of all the claims received against the corporate debtor and the determination of the financial position of the corporate debtor constitute a committee of creditors and shall file a report, certifying constitution of the committee to this Tribunal on or before the expiry of thirty days from the date of his appointment, and shall convene first meeting of the committee within seven days of filing the report of constitution of the committee; and vii) The Interim Resolution Professional is directed to send regular progress report to this Tribunal every fortnight. A copy of this order be communicated to both the parties. The learned counsel for the petitioner shall deliver copy of this order to the Interim Resolution Professional forthwith. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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