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TMI Blog2019 (9) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... here exists debt as well as occurrence of default. The Application filed by the Applicant on 20th April, 2018 is complete in all respects - Application admitted - moratorium declared. - C.P. No.(IB) 182/9/NCLT/AHM/2018 - - - Dated:- 26-9-2019 - Hon'ble Ms. Manorama Kumari, Member (J) Hon'ble Mr. Chockalingam Thirunavukkarasu, Member (T) Advocate Mr. Monal J. Davawala for the applicant. Advocate Solicitor Mr. Arjun Sheth for respondent ORDER Ms. Manorama Kumari, 1. That, the instant application is filed on 20th April, 2018 through authorised signatory by the applicant/operational creditor M/S. SVG Fashions Limited, under Section 9 of the Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as the Code ] 2. That, the applicant/operational creditor M/S. SVG Fashions Limited is a limited company incorporated under the Companies Act, 1956, having identification No. 3. U99999DN1994PLC000067 and having its registered office at 719, Somnath Road, Nani Daman, Union Territory of India - 396 210 is engaged in the business of supply of various fabrics and are doing business with the respondent since the year 2013. 3. That, the corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorising Mr. D.M. Agrawal to show that he had the authority to issue demand notice dated 19.03.2018 as also no authority is seen on record to show that the advocate of the operational creditor had the authority to sign the insolvency petition for and on behalf of the operational creditor; (iii) All the invoices set out in the demand notice dated 19.03.2018 are of the year 2013 and are clearly time barred ; (iv) The form 5 i.e. application by operational creditor to initiate corporate insolvency resolution process under the Code is signed by advocate. 7. Heard the arguments of the learned counsels appearing for both the sides as also seen application, written objections and the documents annexed therein. Findings: 8. On perusal of the written objections so filed by the corporate debtor, it is found that the corporate debtor raised four (4) major objections as said above in paragraph No. 6 of this order. 9. The first objection raised by the respondent is that there is no service of demand notice by the operational creditor. Page No. 5-7 of the affidavit filed by the operational creditor is the copy of the proof of dispatch which shows that the demand notice has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ques, writing a letter to the bank for stop payment and acknowledgement of such letter by the bank appears to be imaginary. More so when the documents produced by both the parties show that the corporate debtor had genuinely issued six cheques on 28.09.2015, which was handed over to the operational creditor through agent who procures the order of supply and facilitates the payment to the supplier which clearly establishes that the corporate debtor had admitted the debt in the year 2015 and, therefore, the petition filed by the operational creditor is not barred by limitation. In short, the corporate debtor has admitted the debt of the year 2013 on 28.09.15 and the instant petition is filed on 20.04.2018, therefore, it is well within limitation and as per the provisions of the IB Code. Hence, the theory of missing cheques is totally concocted story of the corporate debtor. Had there been any missing of cheques, the corporate debtor would have filed the FIR immediately. 14. In this context, it is desirable to refer para 13 (page 6) of the affidavit in reply filed by the corporate debtor wherein it is stated by the corporate debtor that the office of the corporate debtor had lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent, was asked to produce original/legible copy of said letters. Accordingly, corporate debtor had produced on record legible copy of those letters issued to the bank to stop payment of said cheques. On perusal of legible copy, it is found that original date of issuance i.e. 01.01.2008 printed earlier, has been strike of by putting new date 04.03.2017 in all the said letters. While comparing these letters with that of Annexure A placed at page No. 3 to 8, the dates vary e.g. as per Annexure 'A' all the letters are dated 03.08.2018, whereas the subsequent letters issued on the letter pad of the bank shows the original date of issue as 01.01.2008 and after striking it off, the date has been made as 04.03.2017. Thus, there are three different dates on the letter issued by the Bank and corporate debtor failed to justify which one is correct. That apart, no document has been produced by the corporate debtor to justify the plea of missing cheques and subsequent issuance of letter to the bank. 19. A combined reading of the application and the reply filed by the respondent it is evident that the respondent has failed to make payment against the goods supplied by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Section 9(5)(1) of the Code. 26. The petition is, therefore, admitted and moratorium is declared for prohibiting all of the following in terms of sub- section (1) of Section 14 of the Code: - (i) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (ii) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (iii) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (iv) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 27. It is further directed that the supply of goods and essential services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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