9911796707
TMI Blog2019 (5) TMI 1833X X X X Extracts X X X X X X X X Extracts X X X X ..... cy Bankruptcy Code 2016, for initiating a Corporate Insolvency Resolution Process of a Corporate Debtor are entirely different, and is a special remedy provided under the statute which is a complete Code by itself. The petition for winding up filed by the unregistered firm is not a suit within meaning of section 69(1) (2) of the Indian Partnership Act. All steps taken in winding up proceedings are in public interest and cannot be construed as right arising from a contract between petitioner/creditor and the company. The objections raised by the Corporate Debtor for rejection of the petition on grounds of having been filed by an unregistered firm is not sustainable. Outstanding operational debt or not - the debit note was for more than the amount demanded had been issued by the Corporate Debtor - HELD THAT:- As this debit note was denied by the Operational Creditor, opportunity was granted to the Corporate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledger pertaining to the transactions between the two parties, a sum of ₹ 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 failed to bring to the notice of the Operational Creditor the existence of any dispute or proof of payment. The said petition has been filed in the required format and is annexed with statutory compliance as required under section 9(3)(b) and 9(3)(c) of the Code. 4. On entering appearance, the Corporate Debtor has filed its reply opposing the prayer made on various grounds, inter alia that; - i. The petitioner is an unregistered partnership firm and is therefore not competent to initiate the present petition, being hit by the provisions of section 69 of the Partnership Act. ii. There is no outstanding operational debt as the debit note fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code 2016, for initiating a Corporate Insolvency Resolution Process of a Corporate Debtor are entirely different, and is a special remedy provided under the statute which is a complete Code by itself. In the matter of Kottamasu Sreemannarayanamurthy Vs. Chakka Arjanadu AIR 1939 Madhya Pradesh has held: A petition for the adjudication of a debtor as insolvent is not a proceeding to enforce a right arising from a contract. The right which the creditor who files the insolvency petition against his debtor is seeking to exercise is the right of a creditor who finds his debtor in insolvent circumstances to have the assets of the debtor administered in insolvency and distributed for the benefit of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Operational Creditor. Had the material been sub-standard, concerns would have been raised while using the material at the manufacturing stage, 9. In view of the categorical repudiation of any debit note being issued or accepted by the Operational Creditor, this Bench called upon the Corporate Debtor to corroborate it by way of any prior correspondence or email in respect, of dissatisfaction of any substandard goods. There was none between the parties. We further inquired whether the alleged defective goods, which gave rise to the debit note, had been returned to the Operational Creditor. It was confirmed that the said goods were not returned. Under such circumstances the petitioner's submission that no Debit Note had been issued has to be accepted. Mere entry by the Corporate Debtor in its own record, reflecting an amount under a debit note cannot form the basis of repudiating the claim of the Operational Creditor without any acknowledgement in. this respect. 10. With respect to the third objection that the affidavit annexed alongwith the petition had been executed on a non-judicial stamp paper purchased in Uttar Pradesh, but notarized at Gurgaon, should culminate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor regulator. (4) Further, the order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority 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, more specifically under Sections 15, 17, 18, 20 and 21. The IRP shall file his report within 30 days as per statutory requirements. 13. Copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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