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TMI Blog2018 (11) TMI 1641X X X X Extracts X X X X X X X X Extracts X X X X ..... Insolvency and Bankruptcy Code, 2016 (for short to be referred hereinafter as the Code ) for initiating Insolvency Resolution Process against the corporate debtor. The operational creditor passed a Resolution dated 23.03.2018 resolving to file the petition under the Code against the respondent-corporate debtor and authorizing Mr. Prem Kishore Mehra, Managing Director, Mr. Sanjeev Mehra, Director of the company severally to file the petition, sign and verify the pleadings and to do all the acts necessary for the progress of the case. The Resolution of the Board of Directors of the petitioner-operational creditor is at Page 981 of the paper book. The application has been filed in Form 5 as prescribed in Rule 6(1) of Insolvency Bankruptcy (Application to Adjudicating Authority), Rules 2016 (for brevity the Rules ). The contents of the application are supported by the affidavit sworn in by Mr. Sanjeev Mehra one of the authorized person. 2. The respondent-corporate debtor M/s A.P. Enterprises was incorporated on 13.01.1993 with authorized capital of ₹ 3,50,00,000/- (Rupees Three Crores and Fifty Lakhs Only) and paid up capital of ₹ 3,48,55,000/- (Rupees Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 4,31,80,554/-. The list of 79 cheques issued on 09.02.2018 of the total amount of ₹ 4,31,80,554/- is from pages 802 to 804 of the paper book. 5. Out of the aforesaid amount of ₹ 22 lacs the respondent-corporate debtor deposited an amount of ₹ 8,00,000/- by RTGS transfer on 09.02.2018. the date of execution of the aforesaid document and another amount of ₹ 5 lacs by RTGS transfer on 23.02.2018. So even the aforesaid total amount of ₹ 22 lacs agreed to be transferred by RTGS transfer has not been fully paid. The bank receipt with record to the deposit of ₹ 8 lacs on 09.02.2018 is Annexure II/E and for ₹ 5 lacs on 23.02.2018 is Annexure II/F. There is thus, a total amount of ₹ 4,48,85,364/- still outstanding as on 23.03.2018. 6. The petitioner has attached Annexure II/G (Page 808), the list of nine cheques of the total amount of ₹ 60 lacs provided on 09.02.2018. By an e-mail dated 27.02.2018 Annexure II(I), the petitioner followed up with the respondent regarding the outstanding payment and requested the respondent-corporate debtor to replace the few cheques amounting to ₹ 60 lacs which were ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a claim has been annexed especially the plea has no legs to stand as the respondent-corporate debtor admitted the liability by way of the balance confirmation and issuing multiple cheques. 10. The reliance upon the ledger account to certain entries of the respondent is a fraudulent act of the respondent-corporate debtor with an intent to deliberately and intentionally conceal the true facts from the Tribunal. It is stated that the corporate debtor supplied the material procured from operational creditor to five concerns (i) A.P. Enterprises, Ludhiana (A.P. Ludhiana), (ii) A.P. Enterprises, Baddi (A.P. Baddi), (iii) A.P. Enterprises Pvt. Ltd., Chandigarh (A.P. Chandigarh), (iv) Charan Kamal Card Board Paper Mills Pvt. Ltd., Amritsar (Charan Kamal) and (v) Kronos Packaging Pvt. Ltd., Solan (Kronos) (page 22). The ledger account attached with reply to demand notice refers to the purchases made in respect of A.P. Ludhiana, A.P. Baddi and A.P. Chandigarh but the purchases made in the names of Kronos and Charan Kamal are not reflected. In fact, the payments were made by the respondent-corporate debtor towards the goods supplied not only to the three A.P. Enterprises en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hase the goods from the respondent-corporate debtor and sell it further to the respondent company and earning its commission. Even the sale orders issued by the petitioner alongwith the invoices show that M/s Charan Kamal Card Board Paper Mills Pvt. Ltd., is the distributor for sale to the respondent-corporate debtor. This type of arrangement was made to cut the costs for logistic point of view so that the truck goods/shipments can directly go to the buyers/consignees places. Therefore, those invoices were supposed to be paid by M/s Charan Kamal Card Board Paper Mills Pvt. Ltd., a separate entity. The copies of invoices which M/s Charan Kamal Card Board Paper Mills Pvt. Ltd., was liable to pay are at Annexure R-3 (colly). Accordingly, the amount of the invoices which the respondent-corporate debtor is liable to pay are worth ₹ 5,60,83,015/- (Page 3 of reply) for which the respondent is not denying the liability. The amount of the invoices for M/s Charan Kamal Card Board Paper Mills Pvt. Ltd., to the tune of ₹ 1,27,25,661/- (Page 3) has to be paid by the aforesaid concern. Copy of the chart showing total invoices amount of the petitioner company and M/s Charan Kamal Card ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. The respondent is stated to be a company of repute which is working since the year 1987 and was incorporated as a company in the year 1993. It is a Manufacturer and Distributor of pulp and paper products mainly kraft paper and one of the leading Paper Mills in Chandigarh and mainly operating from Chandigarh, Ludhiana and Baddi. 18. Reference has also been made to Section 75 and 76 of the Code to contend that the petitioner is liable for punishment for furnishing false information and for non-disclosure of dispute or payment operation debt. 19. In the rejoinder filed by way of affidavit of Mr. Sanjeev Mehra, the operational creditor has stated that corporate debtor admitted its liability to make payment of the outstanding amount vide e-mail dated 01.01.2018 (Page 790) of the paper book. There is nothing on record to suggest that the respondent-corporate debtor denied the liability for making payments relating to M/s Charan Kamal Card Board Paper Mills Pvt. Ltd./Kronos Packaging Pvt. Ltd. The cheques dated 12.03.2018 for a total amount of ₹ 50 lacs were issued in lieu of the cheques of ₹ 60 lacs which had bounced and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2017 to 22.10.2017 is at Annexure II/B and it has been categorized entity wise. First chart pertains to the invoices issued in the name of A.P. Enterprises Pvt. Ltd., Ludhiana from Sr. No. 1 to 37; A.P. Enterprises Pvt. Ltd., Chandigarh from Sr. No. 1 to 50; A.P. Enterprises Pvt. Ltd. Baddi, Sr. No. 1 to 11; Charan Kamal Card Board Paper Mills Pvt. Ltd., three invoices of the amount of ₹ 9,91,952/-, one invoice pertaining to Kronos Packaging Pvt. Ltd., of the amount of ₹ 5,34,872/-. 22. The learned counsel for the respondent referred to some of the invoices in order to support his contention. At Page No. 764 is the invoice dated 17.06.2017 issued by the operational creditor-petitioner. This is in respect of the good supplied to the tune of ₹ 5,07,955/-. The invoice has been prepared with name of the consignee as A.P. Enterprises Pvt. Ltd., as consignee and it has been invoiced as purchase through/buyer M/s Charan Kamal Card Board Paper Mills Pvt. Ltd. 23. The learned counsel for the petitioner vehemently contended that this was the manner in which the respondent has instructed the petitioner to invoice the supply of the goods. Refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant petition. The Hon ble Supreme Court has settled the principles of law on the subject in Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. [2017] 144 SCL 37 (SC) as under:- 51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute 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 defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.P. Enterprises. The letter dated 16.04.2018 is Annexure II/Q. It was stated in the letter that as per record of the petitioner, the last remittance was made by the respondent in the bank account in the account of the petitioner maintained in State Bank of India to the tune of ₹ 5 lacs on 23.02.2018. It is submitted that the bank did not furnish the required certificate. It is the settled principle of law that filing of the certificate from the bank in terms of Section 9(3)(c) is not mandatory and in this case a genuine effort was made by the petitioner to get the one. Otherwise the petitioner has also filed copies of the Bank statements of the account which it is maintaining with HDFC and State Bank of India where the deposits or credits have been received normally from the corporate debtor as at Annexure III. In any case, it is not the version of the respondent that any payment was made to the petitioner after the last payment amounting to ₹ 5 lacs. 31. We find that the application submitted by the petitioner is complete in all respects and in the absence of the existence of any dispute, the ingredients of Sub-section 5(i) of Section 9 of the Code are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard for the recommendation of an insolvency professional who may act as an interim resolution professional; 36. The Insolvency and Bankruptcy Board of India has issued a letter No.IBBI/IP/EMP/2018/01 dated 28.06.2018 addressed to the Hon ble President of the National Company Law Tribunal that for the purpose of appointing Interim Resolution Professional/Liquidator, the Board has invited expression of interest from the qualified Insolvency Professional who are registered with the Board as per the guidelines prepared by the Board. The Bench-wise list of the Insolvency Professionals who have expressed interest to become Interim Resolution Professional/Liquidator has been enclosed with this letter. The list attached with the letter is valid from 01.07.2018 to 31.12.2018. We would appoint Mr. Somnath Gupta, Registered Professional, as mentioned at Serial No.1 of the letter, as the Interim Resolution Professional. 37. We further issue the following directions:- (i) Appoint Mr. Somnath Gupta, Registration No. IBBI/IPA-002/IP-N00042/2016-17/10081, Address: 1019, Lane No I, Ramsharnam Colony, Pathankot, Punjab-145001, M: 70824-14848 e-mail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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