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TMI Blog2018 (2) TMI 2014X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.10.2013. According to the petitioner payments were made from 01.12.2013 to 04.09.2014. In the absence of any material to show that the cheques were issued on 31.10.2013 it shall be presumed that the cheques were issued on the date that was appearing on the cheques. Therefore, the issuance of cheques in the year 2014 and 2015 Clearly goes to show that there was no existence of dispute between the petitioner and respondent before issuance of demand notice. Therefore, it is a clear a case where a dispute has been raised for the first time in the reply notice. It is not a case where existing dispute has been brought to the notice of the petitioner by the respondent. The petition is complete in all respects it deserves to be admitted. - C.P. (IB) No. 150/9/NCLT/AHM/2017 - - - Dated:- 9-2-2018 - Hon'ble Mr. Bikki Raveendra Babu, Member Judicial And Hon'ble Ms. Manorama Kumari, Member Judicial For the petitioner: Mr. Rishikesh Vyas PCS For the respondent: Mr. HarmiSh Shah, Advocate Mr. Bikki Raveendra Babu, JUDGMENT 1. Kadillac Chemicals Private Limited (KCPL) filed this petition styling it as operational creditor under Section 9 of The Insolve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut job work and supply finished goods. Charge for job work is ₹ 42/- per kg. of finished goods produced. KCPL raised the following invoices in job work and other charges such as freight, packaging etc. are as under: - Nos. Date Invoice/ Debit Note Ref. No. Amount Rs. 01 16.11.2013 JB01 2,16,720/- 02 20.11.2013 JB02 4,27,39/- 03 21.12.2013 JB03 6,38,484/- 04 02.12.2013 SBL02 52,973/- 05 21.12.2013 SBL03 64,669/- 06 01.01.2014 SBL04 25,956/- 4. According to KCPL all the aforesaid invoices are still outstanding for payment although credit period allowed is only 30 days. SBSL did not raise any dispute about non-payment of goods. SBSL never raised any debit note on such demand except by way of reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary notices, petitions, affidavits, declarations etc. Mr. Lakshak Patel, Director filed this petition. 8. KCPL filed copy of ledger accounts of SBSL in the books of KCPL copies of outstanding invoices along with copy of delivery challans, copy of delivery challans for receipt of raw materials for job work purpose, copies of two bounced cheques, copies of income-tax returns, copies of balance sheet and profit and loss account for the year 2016-17, copy of reply received from SBSL, copy of job work MOU and copy of Board Resolutions of KCPL. KCPL filed affidavit in support of the petition and the affidavit as required by 1B Code Section 9. KCPL also filed written communication in form No. 2 of Interim Resolution Professional Mr. CS Sitansh Magia. 9. Following are the objections raised by SBSL: - (1) KCPL unnecessarily added Directors Of SBSL as parties and therefore the petition is bad for mis-joinder of parties. (2) Form 3 is not as per Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 and, therefore, it is not a valid notice. (3) Petition is barred by limitation (4) KCPL is not doing job work as per MOU and retained th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise, it is the contention of the learned PCS for operational creditor that provisions Of Limitation Act is not applicable for the proceedings in 1.3. Code. In support of his contention he relied upon the following decisions rendered by NCLAT, New Delhi. (1) Black Pearl Hotels Pvt. Ltd. vs. Planet M. Retail Ltd. in Company Appeal No. 91 of 2017 decided on 17.10.2017. (2) Sanjay Bagrodia vs. Sathyam Green Power Pvt. Ltd. in company Appeal NO. 193 of 2017 decided on 15.11.2017. In view of the above decisions of NCLAT it can only be said that Limitation Act is not applicable. 14. Crucial objection is the dispute raised by SBSL in the reply notice dated 05.09.2017. Dispute raised by SBSL is that there was an MOU between KCPL and SBSL on 31.10.2013 and as per the said MOU, SBSL will send raw material to KCPL for conversion. KCPL will dispatch in ratio as per annexure - 2 of the MOU. Further, in accordance with clause 3 of said MOU it is agreed by both the parties that specification will be given by SBSL as per annexure - 3 of the said MOU. Further, as per clause 7 of the said MOO, it is prayed by both the parties that conversion charges will be paid by SBSL to KCPL for jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice of the operational creditors in the reply to the demand notice as required by Section 8 (2) of the IB Code. 18. It is contended by learned CS for the operational creditor that till notice was issued no dispute was raised by SBSL and, therefore, the dispute is raised only as defence to this petition but it is not a real dispute. He further contended that issuance of cheques towards payment of outstanding amount goes to show that no dispute was raised by SBSL regarding the retaining of raw material and not doing job work as per MOU. 19. On the aspect of dispute, this Tribunal has to follow the judgement of Hon'ble Supreme Court of India in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Private Limited. in Civil Appeal No. 9405 of 2017. In that judgement, in para 40 it is clearly held as follows: - 40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss against it. 22. This Tribunal has to see whether in fact of dispute exist, by the date of issuance of Demand notice. 23. The crucial aspect in this case is whether dispute mentioned in the reply notice given by the corporate debtor to the operational creditor was there in existence even before the date of issuance of demand notice under Section 8 Of the Code. Dispute mentioned in the reply notice is operational creditor failed to supply the finished goods as per MOU dated 31.10.2013. Operational creditor also retained the raw material that supplied to the operational creditor from and on behalf of the corporate debtor. The fact that raw material belonging to the corporate debtor has been retained by the operational creditor is an admission by the operational creditor. To appreciate this fact, it is necessary to examine the dates of events. MOU was entered into on 31.10.2013. Amount claimed in the invoices is from 16.11.2013 to 01.01.2014. The supply of various chemical materials by the petitioner to the respondent from 10.06.2013 to 17.10.2013. According to the petitioner payments were made from 01.12.2013 to 04.09.2014. 24. According to the petitioner cheques dated 26. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be admitted. Petition is accordingly admitted. 27. In the case on hand petitioner has proposed the name of Mr. Sitansh Magia, Flat No. 6, Kamdar Chamber, A wing, Plot No. 251, Sion (East), Mumbai 400 022. 28. Adjudicating Authority hereby appoint Mr. Sitansh Magia, CS, as Interim Insolvency Resolution Professional having address at Flat No. 6, Kamdar Chamber, A wing, Plot NO. 251, Sion (East), Mumbai 400 022 with Registration No. IBBI/IPA- 002/IP-N00293/2017-18/10850 u/s 13 of the Code. 29. The interim Insolvency Resolution Professional is hereby directed to cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for submission of claims under Section 13 (l)(b) read with Section 15 of the Code and Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution process for Corporate Persons) Regulations 2016. 30. This adjudicating Authority hereby order moratoriurn under Section 13 (I) (a) of the 1B Code prohibiting the following as referred to in Section 14 of the Code; (a) the institution of suits or continuation of pending suits or proceedings against the company/corporate debtor including execution of any j ..... 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