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TMI Blog2018 (10) TMI 1766X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent to controvert the allegation of the petitioner and to say that it contained different notice than what is relied upon by the petitioner - The instant petition has been filed on 01.05.2018 i.e. after the expiry of 10 days period. Therefore, the issue is decided in favour of the petitioner and against the respondent-corporate debtor. Whether there is existence of dispute between the parties? - HELD THAT:- For the dishonour of the cheques the respondent-corporate debtor and its responsible persons are already facing the case in the criminal complaint under Section 138 of the Negotiable Instruments Act. The present thus, is a case in which there is no hesitation for us to hold that it is a case of non-existence of any dispute between the parties at the time the demand notice was issued The subsequent record relied upon by the respondent cannot give rise to the existence of dispute between the parties to oust the petitioner for an order of admission. Whether the petition is barred by limitation? - HELD THAT:- Since on the third issue, the last payment made by the petitioner was admittedly for an amount of ₹2 lacs on 18.05.2017. the instant petition filed on 01.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 09.04.2018 at page 41 of the paper book. CS Bhupesh Gupta, Practicing Company Secretary and Mr. Nahush Jain, Advocate have been authorized to represent the partnership firm in respect of the instant proceedings and to do all the necessary acts in progress of the case. There is affidavit Annexure A-4 of Mr. Gulshan Kumar Jain, partner of the petitioner firm in support of the contents of the application. 3. Respondent was incorporated as a company on 11.04.1988 with CIN: U18100PB1988PTC008266 having authorized share capital of ₹6,00,00,000/- (Rupees Six Crores only) and paid up capital of ₹5,28,95,450/- (Rupees Five Crore Twenty Eight Lacs Ninety Five Thousand Four Hundred and Fifty Only). The registered office of the corporate debtor is at Ludhiana in the State of Punjab and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 4. The facts of the case, briefly stated, are that the petitioner supplied the cotton yarn to the corporate debtor for the period from 05.03.2015 to 05.10.2017 (Annexure A-5) (colly) from pages 30 to 38 of the paper book. There is still an outstanding amount of ₹34,18,702/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that no amount has been received from the corporate debtor in the current account of the petitioner maintained by the bank since 24.08.2016 except one cheque No. 001427 for an amount of ₹2 lacs credited in favour of the petitioner. Entry of the credit of ₹2 lac in respect of the aforesaid cheque has been duly acknowledged in the ledger account of the petitioner on 18.05.2017 at Page 53 of the paper book. Apart from this certificate of the bank, the petitioner has also filed the copy of the bank statement in respect to the current account maintained with HDFC Bank for the period from 01.09.2017 to 23.04.2018 (Annexure A-12), which is from Pages 71 to 238 of the paper book. 9. On filing of this petition, copy of the application with the entire paper book was dispatched to the respondent-corporate debtor on 01.05.2018 by Speed Post as per the Postal receipt at Page 241 of the paper book in order to comply with the requirement of Rule 6(2) of the Rules. 10. Notice of this petition was issued to the respondent-corporate debtor to show cause as to why this petition be not admitted. The appearance was put in on behalf of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to the operational creditor which he is it is ready to pay. The petitioner has already taken coercive step against the respondent-corporate debtor by filing criminal complaints against them under Section 138 of the Negotiable Instruments Act. The respondent-corporate debtor is a running manufacturing unit with capital utilization of more than 70% and has employed more than 200 persons with a turnover of ₹100 Crores. 14. The other allegation taken in the reply is that the postal receipt under which the demand notice was allegedly sent shows the same to have been posted by one Blue Apple Trad. Ludhiana and not by Mahavir Traders. The tracking report, therefore, refers to the delivery of the aforesaid documents from Blue Apple Trad. Ludhiana and not from the petitioner. Prayer was made to reject the application. 15. The contention that there was a dispute between the parties that arose in the year 2015 has been controverted in the rejoinder on the ground that upto the financial year 2016-17, the respondent-corporate debtor itself confirmed the outstanding balance as on 31.03.2017 as reflected in the ledger account of the respondent being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orization by the Managing Director of the respondent-corporate debtor has been filed on page 75 of the reply authorizing CA Mr. Ravinder Joshi, Practicing Chartered Accountant to be Authorized Representative/Attorney for the proceedings against the corporate debtor under the Code. Mr. Joshi aforesaid has filed Memo of Appearance at page 76 of the reply. 19. The record of the case shows that Mr. Ravinder Joshi was present on 30.07.2018 and filed the reply. Mr. Nakul Sharma, Advocate appeared for him on the adjourned hearing i.e. 12.09.2018, and the matter was adjourned to 22.10.2018. Mr. Ravinder Joshi, Chartered Accountant for the respondent was again not present and therefore, the adjournment requested by Mr. Ravinder Kumar Goel, registered Resolution Professional, who was representing Mr. Ravinder Joshi on the ground that Mr. Joshi was unable to attend the case for some personal difficulty. We however, declined the request for further adjournment for arguments. The arguments were advanced by the learned counsel for the petitioner and in the meanwhile the respondent was granted time to file written arguments. The written submissions have been filed on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner. The notice in Form 3 and Form 4 clearly states that the amount as per the invoices and the ledger account be paid within 10 days from the receipt of the letter which as per the record was delivered on 12.04.2018. The instant petition has been filed on 01.05.2018 i.e. after the expiry of 10 days period. Therefore, the above issue is decided in favour of the petitioner and against the respondent-corporate debtor. 24. The controversy is basically relating to the existence of the dispute. This aspect is to be considered in the light of judgment of Hon ble Supreme Court in Mobilox Innovations Private Limited Versus Kirusa Software Private Limited (2018), 1 SCC 353 and the principle laid down by the Hon ble Supreme Court on the subject is 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il, 2018. On doing so the respondent could possibly show that these cheques were issued from an old cheque book and not the current cheque book. Admittedly, the cheques were dishonoured with the endorsement that the payment was stopped by the drawer. The dishonoured memos of the bank are from pages 61 to 70. 26. Coming to the entries in the ledger book of the parties, there is no question of doubting the authenticity of the ledger account which the petitioner has placed on record for three years and the last entry in the account in the year 2017-18 is on 05.10.2017 with last payment made by the respondent to the tune of ₹2 lacs on 18.05.2017. 27. With regard to the invoices and the GST Returns relied upon by the respondent, the petitioner has rebutted the contention that these were delivered through the driver Davinder in the vehicle mentioned in the some of the invoices of the month of March, 2018 by filing of the affidavit of Davinder, Driver. In any case, the GST Return in Form GSTR-3B is at Pages 41 to 43 and 53 to 55 of the reply and the amended credit/debit notes in Form are pages 59 to 60. There is no evidence led by the respondent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor is not obliged to propose the name of the Resolution Professional to act as an Interim Resolution Professional but in the instant case the petitioner has propose the name of Mr. Anjum Goyal registered Resolution Professional with the IBBI to act as an Interim Resolution Professional. Mr. Anjum Goyal has also furnished his written communication in Form No.2 dated 21.04.2018 Annexure A-10 as prescribed under Rule 9 of the Rules giving the necessary particulars. It is certified that there are no disciplinary proceedings pending against him with the Board or ICSI Insolvency Professional Agency and that he is not serving as Interim Resolution Professional/Resolution Professional/Liquidator in any proceedings. We have perused Form No.2 and find the same to be in order. No defect in the written communication has been pointed out by the respondent-corporate debtor. 32. All the ingredients of sub-section 5(i) of Section 9 of the Code have been fulfilled. The instant petition, therefore, is admitted. 33. In view of the above the instant petition is admitted and we declare the Moratorium in terms of sub-section (1) of Section 14 of the code as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fessional 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 ; iv) The Interim Resolution Professional shall strictly act in accordance with the Code , all the rules framed thereunder by the Board or the Central Government and in accordance with the Code of Conduct governing his profession and as an Insolvency Professional with high standards of ethics and moral; v) The Interim Resolution Professional shall cause a public announcement within three days as contemplated under Regulation 6 of the Inso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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