9911796707
TMI Blog2019 (5) TMI 1833X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Debtor, had supplied "welt" to them on different dates between 2nd April 2015 to 10th June 2016 as per orders placed upon them, for which they maintained a running account. As per the statement of the ledger pertaining to the transactions between the two parties, a sum of Rs. 3,09,221/51 is stated to be the unpaid operational debt. It is submitted that despite repeated requests and reminders the Corporate Debtor has failed to liquidate its liability. Though the Corporate Debtor gave assurances, it failed to take necessary steps, constraining the Operational Creditor to file the present petition after issuing the demand notice to the Corporate Debtor in terms of Section 8 of the Code. 3. It is submitted that the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts wherein the Hon'ble Courts have categorically observed that the bar under section 69 of the Indian Partnership Act is applicable to only suits and other disputes arising out of a contractual nature. Reliance has been placed on the decision of the Calcutta High Court in the matter of Sri Balaji Steels vs. Gontarman- Peipers (India) Limited reported in (2003) 47 SCL 821 (CAL). The Hon'ble High Court of Calcutta had observed, that on a plain reading of the provisions of section 439 of the Companies Act 1956, there was no requirement for a partnership firm to be registered for presenting a winding up petition. An unregistered partnership firm can be a creditor of a company and there is no bar in its filing the present petition for wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e creditors as a body. This is a right which is conferred upon the creditors by statute and is not a right arising out of a particular contract of loan between a petitioning creditor and a debtor. The mere fact that the petitioning creditors constitute a firm and the debt is due to the firm in which the petitioners are partners and they cannot file a suit to recover the amount due to them unless the firm is registered, does not deprive the petitioners of their right to file a petition in insolvency." 7. The Hon'ble Apex Court has also held that the bar under section 69 (2) of the Partnership Act by an unregistered partnership firm would not be applicable for enforcing statutory right. In the matter of Raptakos Brett Company Limited ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor to substantiate whether the said debit note was accepted by the Operational Creditor. No document was produced to corroborate the same. The alleged debit note is also not counter signed on behalf of the Operational Creditor as having been received. Reliance has only been placed on the Visitor's register showing that the Operational Creditor had duly visited their office on the date when the alleged Debit note was executed. The Corporate Debtor has annexed a debit note raised on them by their own customers, who returned the assignments being defective goods, but the same cannot be attributed to the goods supplied to the Operational Creditor. Had the material been sub-standard, concerns would have been raised while using the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in one state cannot be notarized in another for filing in court proceedings. The only requirement could be that in case of difference in the denomination of the stamp paper, the deficiency should be made by reference to the Collector Stamps. In this case the stamp paper is of adequate value. In any event a defect in the affidavit, if any, is a curable defect and cannot culminate in rejection of the proceedings on merit. 11. We find that the objections raised by the Corporate Debtor are not sustainable. In the absence of a pre-existing dispute, the prayer made by the petitioner for initiating the CIR process merits consideration. The petition is therefore Admitted. Corporate Insolvency Resolution Process is directed to be initiated. A mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approves the resolution plan under subsection (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be." 12. The Petitioner has proposed the name of the Interim Resolution Professional. Accordingly, Mr. Pramod Kumar Sharma, Registration No. IBBI/IPA-002/IP-N00110/2017-18/10258 E-mail Id: [email protected] - Mobile No: 09412588432. His consent in Form 2 (sub Rule (1) of Rule 9), as well as copy of his certificate of registration with the IBBI are on record. We accordingly confirm Mr. Mr. Pramod Kumar Sharma as IRP in this case. He is directed to take such steps as are mandated under the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X
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