9911796707
TMI Blog2020 (3) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... C090372, and represented by its Director, Mr Chandrakant Vadilal Shah, on the basis of a Board Resolution dated 09.01.2018 seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Kookey Multitrading Private Limited ("the Corporate Debtor"). 2. The Corporate Debtor is a private company limited by shares incorporated on 27.01.2011 under the Companies Act, 1956, with the Registrar of Companies (RoC), Maharashtra, Mumbai. Its CIN is U51109MH2011PTC212741. Its registered office is at 51, Bajaj Bhavan 226 Nariman Point, Opposite Inox Theatre, Mumbai 400021. Therefore, this Bench has jurisdiction to deal with this petition. 3. The present petition was filed before this Adjudicating Authority on the ground that the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to be made within five days. (c) The date of default is stated to be 26.03.2014. (d) The Operational Creditor issued a Demand Notice dated 09.01.2018 calling upon the Corporate Debtor to make payment of a sum of Rs. 4,99,07,138/- plus interest due from 26.03.2014 (as stated in the Demand Notice at p.12 of the Petition). (e) The Operational Creditor claims that there was no reply to the Demand Notice, hence this petition. (f) Affidavit under section 9(3) (b) of the IBC has been submitted at p. 35 of the Petition. 5. Mr Sangharsh V. Waghmare, Learned Advocate i/b M/s Optima Legal Solutions, Advocates, appeared on behalf of the Corporate Debtor and made his submissions. 6. The Corporate Debtor has filed a reply to the Petition on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds, the EOW rejected the complaints filed by the Operational Creditor (para 5 at pages 2-3 of Written Statement on behalf of the Respondent of the Petition); (d) There is lack of acknowledgement in the Tax invoice. The Operational Creditor has failed to provide any Delivery Challan and Lorry Receipt for delivery of goods to the Corporate Debtor (para 6 at page 3 of Written Statement on behalf of the Respondent). 7. Invoice have been placed on record as Annexure 'II' at pp.26-31. The invoice provides for interest in case of delayed payments, to be charged at the rate of 24% per annum. Bank statements are also attached as Annexure 'III' at pp. 32. The total debt due and payable to the Operational Creditor is Rs. 9,89,66,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default will be 13.08.2014. Alternatively, if we calculate the date of default in terms of each of the invoices, the same would be different and would range between 01.14.2014 and 13.08.2014 as indicated in the Table in the preceding paragraph. Either way, the date of default cannot be taken to be 26.03.2014 as claimed at page 4 of the Petition. 13. Secondly, there is no proof of service of invoices on the Corporate Debtor, either in the form of signatures on the invoices or by way of Delivery Challans or Lorry Receipts annexed to the Petition. 14. Thirdly, there is no proof of service of the Demand Notice on the Corporate Debtor, in the form of postal receipts, acknowledgement cards, tracking reports from the India Post website or hand d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (supra) and stated as follows:- "Article 141 of the Constitution of India mandates that our judgments are followed in letter and spirit. The date of coming into force of the IBC Code does not and cannot form a trigger point of limitation for applications filed under the Code. Equally, since "applications" are petitions which are filed under the Code, it is article 137 of the Limitation Act which will apply to such applications." 19. As we have already indicated in para 14 supra, the dates of default in respect of the five invoices range between 29.03.2014 and 13.08.2014. Even if we take the last of the dates, i.e., 13.08.2014, and after applying the principles laid down by the Hon'ble Supreme Court in B.K. Educational Services ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
