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TMI Blog2020 (1) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... un Saxena, Adv. for the Applicant. Naresh Kumar Sejvani, Adv. for the Respondent. ORDER 1. This Application is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 'IBC, 2016' read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by M/s. Uniword Telecom Limited ('Applicant') claiming to be an Operational Creditor with a prayer for initiation of Corporate Insolvency Resolution Process ('CIRP') against M/s. Autopal Industries Limited ('Corporate Debtor'). 2. The Applicant has filed this Application through the Authorised Representative of M/s. Uniword Telecom Limited, who is authorised vide Resolution of Board of Directors dated 31.08.2017. 3. The Corporate Debtor is a Public Limited Company, incorporated under the provisions of Companies Act, 1956 on 15.10.1985, duly registered with the Registrar of Companies, Jaipur bearing CIN: L31501RJ1985PLC003427, and its Registered Office is located at 2nd Floor, E-195(A), RIICO Industrial Area, Mansarover, Jaipur- 302020, Rajasthan. The Authorised share capital of the Corporate Debtor is ₹ 25,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Corporate Debtor made the last payment of ₹ 73,069/-on 27.01.2016. The Operational Creditor vide E-mails dated 16.02.2016, 26.02.2016 01.03.2016 informed the Corporate Debtor that the outstanding amount had crossed ₹ 18,00,000/- and requested the Corporate Debtor to release the same at the earliest. The Applicant has submitted that the Corporate Debtor neither replied to any of the E-mail nor made any payment against the outstanding amount. 7. The Applicant has further submitted that the intentions of the Corporate Debtor have turned mala fide since the Corporate Debtor vide E-mail dated 13.05.2016 sent a debit note dated 31.03.2016 for ₹ 17,28,197/- alleging the goods supplied by the Operational Creditor to be of inferior quality. The Applicant has stated that the said debit note was nothing but a ploy and an afterthought to cheat and defraud the Operational Creditor. 8. The Applicant has submitted that the Corporate Debtor with mala fide intentions filled a criminal complaint under Section 156(3) of the Code of Criminal Procedure, 1973 before the Chief Metropolitan Magistrate (CMM), Jaipur for registering FIR against the Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Section 9 of the IBC, 2016 are not as per the prescribed format. It has been further stated that the present Application is not maintainable as it suffers from a lot of defects and incompleteness. 13. The Corporate Debtor has submitted that there is in existence a dispute between the parties herein and the Police Authority, Shipra Path Jaipur has also submitted in their final Report No. 274 dated 27.09.2016 in FIR No. 506 dated 03.08.2016, that there is an existence of civil nature dispute between the parties with regard to holding of payments, detention etc. 14. The Corporate Debtor has further stated that the Operational Creditor concealed the material fact that the Corporate Debtor herein filed a Complaint before the Commissioner of Police on dated 21.07.2016 against the Operational Creditor for illegal retention of the goods of the Corporate Debtor in the Police Station, Shipra Path to register the FIR in this regards, to which a counter complaint on the very next day i.e. dated 22.07.2016 was lodged by the Operational Creditor before the Delhi Police Commissioner. It is stated that the Operational Creditor was called to appear before the Police Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application Under Section 9, under Part IV, the Operational Creditor ignored the mandatory requirement of the statute and attempted to misguide and mislead by presenting and mentioning imaginary figures. 18. The Corporate Debtor has also contended that the Operational Creditor has annexed the certificate issued by the UCO Bank, for the period commencing from 11.03.2016 to 14.09.2017 which is the post dispute period. However, Certificate required under Section 9(3)(c) of the IBC, 2016, is from the date when the parties commenced their business transaction so as to ascertain the exact figure debits/credits between the parties. 19. The Corporate Debtor has submitted that there is a dispute in existence between the parties and the dispute is in the knowledge of both the parties much prior to the filing of this Application. Therefore, the present Application is not maintainable and deserves to be dismissed. In support of its submission, the Corporate Debtor has relied upon the judgment given by Hon'ble Supreme Court in the matter of Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. [2017] 85 taxmann.com 292/144 SCL 37 (SC) wherein Hon'ble Apex Court he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a dispute could be proved by showing that a suit has been filed or arbitration are pending. It further elaborates that suit or .arbitration should be in respect of the existence of the amount debt, quality of goods or services; or a breach of a representation or a warranty. It is not an exhaustive definition but an illustrative one. It becomes evident from the expression 'includes' which immediately succeeds the word 'dispute'. Moreover, under Section 8(1) of the Code adequate room has been provided for the NCLT to ascertain the existence of a dispute... 21. The Applicant/Operational Creditor has filed rejoinder on 13.11.2017 denying the contentions of the Corporate Debtor. The Applicant has submitted therein that filing of any criminal complaint is not a dispute under the provisions of the IBC, 2016. The Operational Creditor has also stated that on 13.05.2016 the Corporate Debtor for first time raised the issue of rate difference of strip lite and rejected flexible PCB (strip lite). It is submitted that rate of strip lite as per the purchase order placed by the Corporate Debtor were 5.6 and 7.3. The Operational Creditor has raised invoices at the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no pending court case, arbitration or any other matter with regard to the similar subject matter. Further, during the course of the hearing this Bench has raised a question to the Corporate Debtor that whether any dispute with respect to the quality, rates or otherwise was raised or sent any notice or E-mail to the Operational Creditor before the issuance of the Demand Notice. The reply to this question by the Corporate Debtor was in negative and the Corporate Debtor has failed to place on record any evidence in this regard. The only document produced by the Corporate Debtor in order to establish the pre-existing dispute is the Debit Note dated 31.03.2106 which was sent to the Operational Creditor vide E-mail dated 13.05.2016. (d) The Corporate Debtor, despite receiving the demand notice, did not reply within the stipulated time under the IBC, 2016. (e) The Operational Creditor has referred to a recent judgment given by Hon'ble National Company Law Appellate Tribunal in the case of Ahluwalia Contracts (India) Ltd. v. Raheja Developers Ltd. [2019] 107 taxmann.com 403/155 SCL 210 (NCL - AT)wherein the Hon'ble NCLAT held as under: '...... it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in Form 2 to act as IRP. In view of the same, this Tribunal appoints Mr. Naresh Verma, having Registration No. IBBI/IPA-002/IP-N00054/2016-2017/10106 and E-mail address [email protected], as the IRP of the Corporate Debtor. The IRP is directed to take all such steps as are required under the statute, inter alia in terms of Sections 15, 17, 18, 19, 20 and 21 of the IBC, 2016. 27. The consequences of initiation of CIRP shall be inter alia are as follows:- - (i) The Resolution Professional Mr. Naresh Verma, having Registration No. IBBI/IPA-002/IP-N00054/2016-2017/10106 is hereby appointed as the IRP to take over the affairs of the Corporate Debtor and duties as required to be performed by him under the Provisions of IBC, 2016, including the issue of publication in widely circulated newspapers, including one in English and one in vernacular in Jaipur and its hinterland, as contemplated under the Provisions of IBC, 2016 and calling for the claims from the creditors of the Corporate Debtor and collating of the same shall be done. (ii) Further as a consequence of admission, Moratorium as envisaged under Section 14 of IBC, 2016 is invoked in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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