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TMI Blog2020 (3) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... on the other. Application rejected. - CP (IB) NO.3980/MB/C-IV/2018 - - - Dated:- 1-1-2020 - Rajasekhar V.K., Judicial Member And Ravikumar Duraisamy, Technical Member Gouresh C. Mogre, for the Appellant. Mahesh Londhe and Darshan Ashar for the Respondent. ORDER Rajasekhar V.K., This is a Company Petition filed under section 9 of the Insolvency Bankruptcy Code, 2016 ( IBC ) by M/s NN Enterprises ( the Operational Creditor ), a partnership firm represented by its Partner, Mr. Afghan Babu Khan seeking to initiate Corporate Insolvency Resolution Process ( CIRP ) against Relcon Infra Projects Limited ( the Corporate Debtor ). 2. The Corporate Debtor is a public company limited by shares and incorporated on 04.12.2006 under the Companies Act, 1956, with the Registrar of Companies (RoC), Maharashtra, Mumbai. Its CIN is U45201MH2006PLC165973. Its registered office is at C-105, Shyam Kamal Agarwal Market, Vile Parle (East), Mumbai 400 057, within the State of Maharashtra. Therefore, this Bench has jurisdiction to deal with this petition. 3. The present petition was filed on 16.10.2018 before this Adjudicating Authority on the ground that the Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 31.08.2018, as mentioned at p.8 of the Petition. 6. The Operational Creditor had served a Demand Notice in Form 3 dated 06.09.2018 to the Corporate Debtor (Exhibit 'F' at pp.73-80 of the Petition) in terms of section 8 of the IBC. 7. The Corporate Debtor has sent a reply dated 18.09.2018 (received by the Operational Creditor on 19.09.2018) to the Demand Notice, wherein it has been stated that one Mr. Natwarlal Purohit was a partner in NN Enterprises at the time of the transaction, and that he was also a partner in two companies viz.,(1) Sarneshwar Infra Private Limited, and (2) Technotrade Impex India Private Limited. The Corporate Debtor has further stated that they had business relations with Mr. Natwarlal Purohit and the aforementioned companies, pursuant to which the Corporate Debtor supplied RMC to Sarneshwar Infra Private Limited and Technotrade Impex India Private Limited. The Corporate Debtor further states that a sum of ₹ 24,49,226/- is due and payable by the said Sarneshwar Infra Private Limited and a sum of ₹ 1,26,000/- is due and payable for goods sold and delivered by the Corporate Debtor to Sarneshwar Infra Private Limited and Technotrade I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor and made his submissions. 13. In its reply dated 08.04.2019, the Corporate Debtor has set up the following defence:- (a) The Corporate Debtor has stated in its affidavit in reply that prior to the notice dated 20.09.2018, the Operational Creditor had issued a demand notice dated 06.09.2018 to the Corporate Debtor. The Corporate Debtor had rebutted all the allegations of the Operational Creditor in the notice dated 06.09.2018 vide reply dated 18.09.2019. Upon realising the mistake as well as after appreciating and admitting the genuine case/defence, the Operational Creditor issued a fresh demand notice dated 20.09.2018 [para 5 at p.113 of the Reply]; (b) The Corporate Debtor states that upon perusal of the two notices it appears that the Operational Creditor itself is not sure about the quantum of alleged debt. The Corporate Debtor states that the existence of a dispute between the Petitioner and the Respondent is abundantly clear from the notices and reply [para 6 at p.113 of the Reply]; (c) The Corporate Debtor states that under the semblance of rectifying typographical errors in notice dated 06.09.2018, the Operational Creditor has materially changed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reiterated. Pursuant thereto, the Corporate Debtor furnished copies of the ledger accounts of Sarneshwar Infra Private Limited and Technotrade Impex Private Limited to the Operational Creditor. The Operational Creditor then requested for its own ledger account from the Corporate Debtor, which was sent by email dated 10.08.2018. The Operational Creditor placed on record the copy of the email dated 10.08.2018 whereby the ledger account of the Operational Creditor as maintained by the Corporate Debtor was sent. However, there was wilful and material suppression of the ledger account of the other two companies, viz., Sarneshwar Infra Private Limited and Technotrade Impex Private Limited, which was also sent [para 11.6 at pp.117-118 of the Reply]. The entire communication exchanged between the parties has been placed on record by the Corporate Debtor as Exhibit 'E' (pp.205-206 of the Reply) and Exhibit 'F' (pp.207-211 of the Reply). (h) Despite the consistent stand taken by the Corporate Debtor regarding set off/adjustment of accounts between the three entities, the Operational Creditor has falsely denied the nexus between the three entities and sworn a false affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of section 69(2) of the Partnership Act, and the other is whether a winding up petition has been filed on a cause of action to enforce a right arising from a contract or conferred by the Partnership Act. So far as the first condition is concerned in this case, it is an admitted position that petition for winding up filed by the unregistered firm cannot be construed to be a suit within the meaning of section 69(2) of the Partnership Act 19. A plain reading of the provisions of section 69(2) of the Indian Partnership Act, 1932, reveals that the term suit has been used instead of the term proceedings. In Gaurav Hargovindbhai Dave v. Asset Reconstruction (India) Ltd. [2019] 109 taxmann.com 395/156 SCL 377 decided by the Hon'ble Supreme Court while addressing the applicability of the provisions of the Limitation Act, 1963, it was held that Article 62 (of the Limitation Act, 1963) is not applicable on the ground that it would only apply to suits. It was held in that case as follows:- The present case, being an application under section 7, would fall only within the residuary Article 137. 20. This view was further reiterated by the Hon'ble Supreme Court in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will non-suit him on the ground of contumacious conduct. 10. In KD Sharmav.SAIL,the Court held that the jurisdiction of the Supreme Court under article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G Jayashree v.Bhagwandas S Patel. 25. During the hearing, the Learned Counsel for the Corporate Debtor has submitted that there were long-standing business relations between the Corporate Debtor and the Operational Creditor, Sarneshwar Infra Private Limited and Technotrade Impex India Private Limited. When the goods in question were supplied by the Operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor even though he was fully aware of the assurances given by the other partner of the Operational Creditor to the Corporate Debtor in regard to set off/adjustment of accounts between the three entities on the one hand and the Corporate Debtor on the other. 29. The Learned Counsel for the Operational Creditor fairly admitted during the hearings that there was material change in the second Demand Notice which cannot strictly be termed correcting typographical errors. 30. In this view of the matter, admitting the petition against the Corporate Debtor would cause grave prejudice to it. It may be prudent to leave the parties to work out their remedies under other laws before a civil court, rather than decide the issue under summary proceedings which the IBC contemplates. Admitting the petition in such circumstances would amount to gross misuse of the IBC and abuse of process of law. 31. For the reasons stated above, the application fails and therefore, the same is rejected. 32. We make it clear that any observations made in this order should not be construed as expressing opinion on merits. The right of the petitioner before any other judicial forum shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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