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TMI Blog2020 (10) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner under Section 9 of IB Code is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against the Corporate Debtor Company. The present IB petition is admitted. - C. P. (I.B.) No. 533/9/NCLT/AHM/2018 - - - Dated:- 16-3-2020 - Harihar Prakash Chaturvedi, Member (J) And Prasanta Kumar Mohanty, Member (T) For the Appellant : Aishwarya Reddy, Navin Pahwa, Ravi Pahwa For the Respondent : Himani Chhabra, Thakkar and Pahwa, Advocates ORDER Prasanta Kumar Mohanty, Member (T) 1. The present Petition is filed on 11.10.2018 under Section 9 of the Insolvency and Bankruptcy Code, 2016 ('IB Code' for short) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 ('IB Rules' for short) for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor, Agarwal Mittal Concast Private Limited for the unpaid Operational Debt due. 2. The Petitioner, Megamet Steels Private Limited is a company incorporated under the Companies Act, 1956. The Petitioner is having its registered office at 411, Embassy Centre, Nariman Point, Mumbai - 400 021 and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 153 21.09.2017 8,58,777.00 13 159 22.09.2017 7,36,219.00 14 160 22.09.2017 8,44,836.00 15 168 25.09.2017 8,62,552.00 16 172 27.09.2017 5,51,950.00 17 173 27.09.2017 5,26,278.00 18 175 27.09.2017 7,65,852.00 19 184 04.10.2017 8,96,822.00 20 190 06.10.2017 8,29,735.00 21 191 09.10.2017 9,12,795.00 22 192 09.10.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner, and yet payments against all such invoices were not made, in accordance with the agreed terms and conditions. There were outstanding dues for each of the order supplied by the Petitioner, which amounts to a total outstanding of ₹ 1,52,88,434.00 (Rupees One Crores Fifty Two Lakhs Eighty Eight Thousand Four Hundred and Thirty Four Only). 10. It is submitted that the Corporate Debtor has been providing some or the other baseless reasons and has thus avoided discharging its debt liabilities to the Petitioner. 11. It is submitted that it is crystal clear that the Corporate Debtor is running without sufficient liquidity and without capacity to repay its legitimate and admitted debts. It is evident from the records that the Corporate Debtor is unable to pay its debts. The total amounts due and payable to the Petitioner have been unconditionally confirmed by the Corporate Debtor. 12. It is submitted that the Petitioner after many failed attempts to recover the money, was left with no other option and so, addressed a Demand Notice dated 13.04.2018, demanding the payments due to it, under the IB Code. The said Demand Notice has been replied to by the Corporate Debtor v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Petitioner has duly caused the service of demand notice upon the Corporate Debtor at its registered office and hence sufficient service. It is submitted that since the Corporate Debtor has neither satisfied the claim nor compounded or secured the same to the satisfaction of the Petitioner within the statutory period of 10 days from the date of Demand Notice, the Respondent/Corporate Debtor is deemed to be unable to pay its debts and therefore the CIRP procedure may be initiated against the Respondent/Corporate Debtor by the Petitioner. 15. It is submitted that no suit, arbitration proceedings or any other proceedings are pending before any judicial forum or authority relating to the unpaid operational debts except the legal proceedings under Section 138 of Negotiable Instruments Act as mentioned supra. Further, it is submitted that the Corporate Debtor/Respondent till date has not disputed the liability to pay the outstanding amount to the Petitioner and has also not shown 'existence of dispute', if any in terms of Sub-section (2) of Section 8 of the IB Code. Thus, it is clear that the Corporate Debtor/Respondent has committed 'default' in payment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor way back in the year 2013 to the Operational Creditor as a security but not towards any outstanding debt. The account to which, this cheque was issued was itself closed on 31.03.2014, i.e. the Kotak Mahindra Bank Limited and the Kotak Mahindra Bank Limited issued a letter dated 31.03.2014 to the Corporate Debtor informing about the closure of the aforesaid account(s) by sending a Demand Draft No. 826420 for the amount of ₹ 5349.66. It is stated that the Petitioner has fraudulently fabricated and tampered with the cheque and presented the same in the Bank. The Operational Creditor has thereafter made this cheque as the basis of the Demand Notice. 18.5 It is submitted that the Operational Creditor has approached this Hon'ble Tribunal with unclean hands by filing the present application upon false and forged documents. In pursuance thereof, it is relevant and important to point out that the statement of confirmation of accounts as allegedly produced by the Operational Creditor of the present application showing the stamp and signature of authorized signatory of Corporate Debtor company is absolutely forged and concocted as the Corporate Debtor has till date never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of debt and not an existence of dispute. Placing reliance on the said order, it is the submission of the Petitioner that the order of the Hon'ble Appellate Tribunal makes it clear that no defence of an existence of dispute can be supported when a cheque for the amounts due has been issued and was thereafter dishonoured. 19.5 It is submitted that the Corporate Debtor's defence that the returned cheque was misused by the Petitioner as the same was given to the Petitioner many years ago. It is the Corporate Debtor's claim that Corporate Debtor had closed its account with Kotak Mahindra Bank way back in the year 2014 and because of the same, the Corporate Debtor could not have issued the said cheque on 01.03.2018. It is submitted that the fact of closure of a bank account can only be known to the banker and its client and a third party such as the Petitioner would not be aware of such development. It would also be relevant to note that even though the account may have closed in 2014, there is no evidence that the cheque of the said account held by the Corporate Debtor was returned to its Banker at the time of closing of the account. Further, it also cannot be the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of (i) issuing a cheque for payment of dues, (ii) issuing signed and stamped acknowledgement of debt by way of statement of accounts and (iii) issuing notice to the Petitioner as its unsecured creditor, seeking approval of the Scheme of Amalgamation between the Corporate Debtor and three of its group companies. Hence, a combined reading of the supporting documents placed on record by the Petitioner and the Corporate Debtor, it is clear that the objections taken by the Corporate Debtor are merely a moon-shine defence not supported by any concrete evidence. 19.8 In light of the above, it is respectfully urged that this Hon'ble Tribunal, on the basis of the material available on record, admit the present application under Section 9(5)(1) of the IB Code. 19.9 The Operational Creditor has suggested the name of Interim Resolution Professional is Shri Pawan Kumar Ramdhan Agarwal, having Insolvency Professional Registration No. IBBI/IPA-001/IP-P00414/2017-18/10737, Address: 42, Gopal Bhavan, 199, S.G. Marg, Marine Lines(e) Mumbai - 400002, Telephone No. 022-22093908/22089133 as an Interim Resolution Professional. Observations 20. The Petition has been filed on 11.10.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Copy of the Application filed before this Tribunal has been sent to the Corporate Debtor, Notice has been duly served. The Respondent has failed to appear before this Adjudicating Authority and the Petition filed by the Petitioner under Section 9 of IB Code is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against the Corporate Debtor Company. Therefore, the present IB petition is admitted with the following directions: 22. As per the provisions of Section 13 and 14 of the IB Code on the date of commencement of insolvency, this Adjudicating Authority hereby declares moratorium for prohibiting all of the following, namely: - I. (a) 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. (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein. (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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