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TMI Blog2019 (1) TMI 1775X X X X Extracts X X X X X X X X Extracts X X X X ..... by the applicant in view of the affidavit executed by the concerned courier agency certifying that on such date no letter was sent to the applicant through their agency by the corporate debtor - Thus, the corporate debtor failed to prove the issue of prior dispute. It is the applicant who provided evidence that no such dispute has been raised earlier by the corporate debtor vide letter dated 01.03.2016 which appears to be fabricated one. On perusal of the documents filed by the operational creditor it is evident that the corporate debtor defaulted in making payments. The petition filed under Sections 8 9 of IB code is complete in all respects - Petition admitted - moratorium declared. - C.P.(IB) NO. 39/9/NCLT/AHM/2018 - - - Dated:- 16-1-2019 - Harihar Prakash Chaturvedi And Ms. Manorama Kumari, Judicial Member For the Petitioner : Jaimin Dave, Adv. ORDER MS. MANORAMA KUMARI, JUDICIAL MEMBER. 1. M/s. Windson Chemical Private Limited, through its Managing Director, filed this Application with a prayer for initiation of corporate insolvency resolution process against M/s. Jason Dekor Private Ltd., under Section 9 of the Insolvency and Bankruptcy Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That, against the said Criminal Complaint, the respondent company has filed a quashing petition under Section 482 of the Code of Criminal Procedure, 1973 before the Hon'ble High Court of Gujarat on the ground that the respondent company is not a party to the criminal complaint. Hence the same is liable to be quashed. That, considering this technical aspect, Hon'ble High Court has quashed further proceedings in criminal complaints. 5. It is further submitted that, with respect to the remaining principal amount of ₹ 24,64,186/- (Rupees twenty-four lacs sixty-four thousand one hundred eighty-six only) the respondent company has not made any payment and the same remained outstanding and payable as on date. That under these circumstances, a principal amount due to the applicant as on date accumulates to ₹ 44,52,415/- which includes the amount of dishonoured cheques. 6. That, the learned lawyer appearing on behalf of the applicant stated that there was a specific clause in each invoice, whereby the applicant company is entitled to claim interest in case of delay in payment of invoice beyond the due date, at the rate of 24% per annum as mentioned in the respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the applicant that, the respondent company owes huge amounts of money not only to the applicant but to various other financial and operational creditors also. That the respondent company has been making huge losses and is not in a stable position to clear its debts and liabilities. 11. That, on receipt of notice, learned advocate on behalf of corporate debtor appeared and filed reply/objections denying the contents of the application so filed under Section 9 of the IBC. That, though none remained present on behalf of the corporate debtor/respondent, at the time of final hearing, the objections raised in the written reply were taken into consideration during the course of hearing by the applicant. 12. It is stated in the affidavit filed by respondent that the petition filed under Section 9 is not maintainable as no demand notice is served upon the corporate debtor. That, in absence of service of demand notice, petition is not maintainable. It is further contended in the reply filed by the respondent that notice dated 05.08.2017 was for the recovery of ₹ 58,07,811/- (Rupees fifty-eight lacs seven thousand eight hundred eleven only) whereas the notice dated 09.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, the respondent had not booked a single courier and the agency had not delivered a single courier to the applicant on behalf of the respondent. 16. That, the applicant also filed copies of the following documents: - Sr. No. Annexure No. Particulars Page No. 01 Form - 5 1-7 02 1 Affidavit in support of form 5 and affidavit of no dispute 8-19 03 1A Copy of master data of the respondent company 20 04 1B Copy of master data of applicant company 21 05 1C Copy of Board Resolution dated 06.11.2017 22-23 06 1D Copy of invoices cum delivery challans raised by the applicant and as acknowledged by respondent company between the duration of December 2013 to February 2016 24-36 07 1E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of e-mail. For the sake of brevity Rule 5 (2) is reproduced hereunder: - Rule 5(2)(b) (2) The demand notice or the copy of the invoice demanding payment referred to in sub-section (2) of Section of the Code, may be delivered to the corporate debtor, (a) At the registered office by hand, registered post or speed-post with acknowledgement due; or By electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor 21. The issue with regard to the prior dispute as raised by the corporate debtor vide vernacular letter dated 01.03.2016, it is found that no such letter has been received by the applicant in view of the affidavit executed by the concerned courier agency certifying that on such date no letter was sent to the applicant through their agency by the corporate debtor. Copy of the affidavit is filed along with the application marked Annexure 'A'. Thus, the corporate debtor failed to prove the issue of prior dispute. It is the applicant who provided evidence that no such dispute has been raised earlier by the corporate debtor vide letter dated 01.03.2016 which appears to be fabricated o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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