9911796707
TMI Blog2019 (1) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... r has not been able to prove that a dispute truly exists in fact. The dispute raised is in the nature of spurious, hypothetical or illusory dispute and therefore, the contentions raised are rejected. 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 13,04,521/- comprising of outstanding amount of invoices of 11,29,565/- and interest at 1.5% per month up to 02.01.2018 of 1,74,956/- (Interest @ 1.5% per month is provided for in Clause 4 of the Security Services Agreement dated 04.04.2016). In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition for initiation of the CIRP process in the case of the Corporate Debtor M/s Quickdel Logistics Pvt. Ltd. is admitted - Moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... on 18.12.2017 authorizing Shri Raj Kumar is at page 27 of the petition. Shri Raj Kumar has also filed an affidavit dated 26.02.2018 verifying the contents of Form No.5 and also stating that the Operational Creditor has not received any reply to the notice given to the Corporate Debtor relating to a dispute of the unpaid operational debt (page 23A of the petition). In part 3 of Form 5, the Operational Creditor has not proposed any Interim Resolution Professional(IRP). 4. Notice of the petition was directed to be issued to the Corporate Debtor to show cause as to why the petition be not admitted. When the petition was listed on 02.05.2018, the service of respondent was directed to be effected 'dasti'. Affidavit of service was filed vide Diary No. 1627 dated 16.05.2018. 5. The respondent has contested this petition and filed reply by Diary No. 2451 dated 12.07.2018. It is stated that the Corporate Debtor never received any Demand Notice under the Code and that the Corporate Debtor had relocated to the new address i.e. 1101, 11Floor, Spaze Hightech Park Tower A-2, Sohna Road, Sector 49, Gurugram and that this address is duly reflected as registered address on the website of the Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor. It is stated that the Corporate Debtor has relocated to the new address on 18.02.2018 and therefore, the service of the Demand notice made at the erstwhile address was valid. 9. They stated that the Corporate Debtor made a feeble attempt to create a fictitious dispute by going way back to July, 2016 and that the same was a mere operational issue which was sorted between the parties and the payment pertaining to the said period i.e. July and August was cleared without any dispute. It is submitted that the FIR filed by the Economic Office Wing of Delhi Police dated 23.06.2017 has no relevance since the Corporate Debtor has not named the Operational Creditor in this FIR and that the allegation in the FIR was that the erstwhile management has misappropriated the funds received from Jasper and of the Corporate Debtor itself. Reference has been made to clause 4 of the agreement dealing with the payment terms and it is submitted that the aforesaid clause also provides for communicating dispute with respect to an invoice and that no dispute was raised during the currency of the agreement or post its termination. It is stated that assuming without admitting the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bilities and compliances including ESI, PF, bonus, MH, LWF etc. in respect of personnel deployed for security services. Reference was made to para 6 of the demand notice dated 19.09.2017 and it was argued that the payments received against the invoices shown therein were less than the receipts from the Corporate Debtor between 15.10.2016 to 15.11.2017 shown in the bank certificate dated 20.12.2017 filed by the Operational Creditor at Annexure-7 of the petition. It was also argued that there was a difference in the outstanding amount of invoice No.KOLC/001354/1617 shown in part 4 of Form No.5 and para No.6 of the demand notice (supra). 12. We have carefully considered the submissions of the learned counsel for the Operational Creditor and Corporate Debtor and have also perused the record. 13. The first issue for consideration is whether the demand notice in form No.3 dated 19.09.2017 was properly served. This demand notice was sent at the address as per master data at page 101 of the petition in which the registered office is shown as Plot No.31, Udyog Vihar, Sector 18, Gurgaon- 122015. The demand notice was sent by speed post. The tracking report filed at page No.59 of the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." 16. The learned counsel for the Corporate Debtor has argued that the Corporate Debtor has paid total sum of ₹58,96,992/- during the period of contract to the Operational Creditor and as per the books of accounts, a total sum of ₹2,50,000/- has to be recovered from the Operational Creditor after adjustment of all debit notes and the copy of the ledger is at Annexure D-1 of Diary No.2451 dated 12.07.2018. The learned counsel for the Operational Creditor has argued that the ledger filed by the Corporate Debtor does not contain the invoices from January to April, 2017 while payments made during this period have been reflected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- as claimed in the reply without any supporting document. It is therefore, submitted by the learned counsel for the Operational Creditor that this was merely an operational issue which stood amicably settled between the parties. 18. The learned counsel for the Operational Creditor has also referred to clause 4 of the security services agreement dated 04.04.2016 (Annexure No.4 of the petition) and has pleaded that the agreement itself provided for raising dispute against the invoice raised by the Operational Creditor and clauses 13(5) and 13(7) of the agreement are also relevant. We find that in view of the payment of the invoices for July, 2016 and August, 2016, the issue raised in the e-mails dated 10.08.2016 and 23.08.2016 were amicably settled. Further, we may add that at para (III) of the reply filed by Diary No.2451 dated 12.07.2018, it was inter alia stated by the Corporate Debtor that adjustment of all debit notes was made. However, the details of these debit notes are not given and there is also no averment that a debit note was issued in respect of the shipments covered by the e-mails dated 10.08.2016 and 23.08.2016. 19. We also find that the dispute as required by c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the plea raised by the Corporate Debtor cannot be accepted. 21. In the reply filed vide Diary No. 2451 dated 12.07.2018, the Corporate Debtor has submitted that there are several instances of violation of the security services agreement dated 04.04.2016. However, no evidence in this regard have been furnished. Therefore, the contention raised is rejected. 22. In the reply(supra), the Corporate Debtor has referred to FIR lodged with the Economic Offences Wing, Delhi. We find that the operational creditor is correct in stating that the FIR has no relevance since the Corporate Debtor has not named the Operational Creditor in this FIR and secondly, the allegations in the FIR are that the erstwhile management of the Corporate Debtor misappropriated the funds received from Jasper and of the Corporate Debtor itself. The plea raised is therefore, rejected. 23. The learned counsel for the Corporate Debtor has argued that in the invoices at Annexure No.5 (colly) of the petition, the charges for providing security guards in Tripura are more than the proposed rates given in the security services agreement dated 04.04.2016. The learned counsel for the Corporate Debtor has not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.12.2016 have been adjusted towards the invoices raised for July and August, 2016 . Therefore, the first two entries of the bank certificate appear to be adjusted towards the invoices for July and August, 2016. The receipt of ₹1,00,000/- on 19.04.2017 only remains for consideration. This receipt does not appear to be taken into consideration in para no.6 of the demand notice. However, the comparison of details in para No.6 of the demand notice with Part 4 of Form No.5 (alongwith Annexure No.3 of the petition) shows that ₹29,033/- was adjusted against invoice No.KOLCI/001089/1617 and ₹70,967 was adjusted against invoice No.KOLCI/001354/1617. The amount outstanding in respect of invoices of ₹12,29,565/- as per demand notice was thereby reduced to ₹11,29,565/- as per Part 4 of Form no.5. Therefore, the amount of ₹1,00,000/- of 19.04.2017 is finally taken into consideration in the amount claimed to be in default in Part 4 of Form 5. Therefore, even on the basis of detailed comparison as per available record, the contention of the learned counsel for the Corporate Debtor cannot be accepted. The learned counsel for the Corporate Debtor has referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or initiation of the CIRP process in the case of the Corporate Debtor M/s Quickdel Logistics Pvt. Ltd. and direct moratorium and appointment of Interim Resolution Professional as below. 32. We declare the Moratorium in terms of sub-section (1) of Section 14 of the code as under:- (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, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 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. 33. It is further directed that the supply of essential goods or services to the corporate debtor as may be specified, shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0546, Mobile No. 9953541408, e-mail id: gyaneshwar. [email protected] as the Interim Resolution Professional, with the following directions:- i) The term of appointment of Mr. Gyaneshwar Sahai shall be in accordance with the provisions of Section 16(5) of the Code; ii) In terms of Section 17 of 'the Code', from the date of this appointment, the powers of the Board of Directors shall stand suspended and the management of the affairs shall vest with the Interim Resolution Professional and the officers and the managers of the 'Corporate Debtor' shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the 'Code', including taking control and custody of the assets over which the 'Corporate Debtor' has ownership rights recorded in the balance sheet of the 'Corporate Debtor' etc. as provided in Section 18 (1) (f) of the 'Code'. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the 'Corporate Debtor'; ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
