9911796707
TMI Blog2020 (6) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal amount and interest at 24 per cent. per annum. 2. Brief facts of the case, as mentioned in the company petition, which are relevant to the issue in question, are as follows : (1) M/s. Aparna Enterprises Ltd. (hereinafter referred to as petitioner/ operational creditor) is a private limited company incorporated under the provisions of the Companies Act, 1956, by, inter alia, engaged in the business of manufacturing and distribution of high quality building materials such as tiles, ready mix concrete (RMC), blocks and uPVC, etc. (2) M/s. SJR Prime Corporation P. Ltd. and another (hereinafter referred to as the respondent/corporate debtor) is a private limited company was incorporated on March 12, 2010 under the Companies Act, bearing CIN : U45201KA2010OPTC052844. Its authorised share capital of Rs. 5,00,00,000 and paid-up capital of Rs. 1,50,00,000. Its main object is engaged in the business of real estate, construction and land development, etc. (3) In recognition of the quality of products supplied by the operational creditor, the corporate debtor has approached the operational creditor for supply of ready mix concrete (RMC), tiles and uPVC (hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as on 18-11-2019 49,973,546.95 Balance confirmation received through e-mail as on September 25, 2019 from the corporate debtor for supply of uPVC ; and invoice-cum- delivery challans for further supply of materials worth Rs. 7,46,286 ; balance confirmation as on March 22, 2019 received from the corporate debtor for supply of tiles. The respondent has thus committed a "default" in making payments of a principal (including retention) amount of Rs. 6,94,84,388 to operational creditor within the meaning of section 3(12) of the Code. (6) In these circumstances, the operational creditor was constrained to issue a statutory demand notice dated November 18, 2019 making a demand for payment for the total debt due from the corporate debtor, under rule 5 of the I and B (AAA) Rules, 2016 and the proof of dispatch of the said statutory demand notice dated November 18, 2019 through e-mail and registered post. Since there is admittedly neither any pending legal proceedings (i. e., suit or arbitration) pertaining to any bona fide "dispute" raised by the corporate debtor before its receipt of the petitioner's demand notice, nor any repayment, the corporate debtor is liable to be placed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as compensation to the customers. Further, the respondent is in the process of quantifying the amount of loss and dam aged caused by the petitioner and there is no debt due to the petitioner, and there is no agreement by this respondent to pay the sums claimed by the petitioner. (4) The purchase order bearing Ref. No. PO/V/21-07-2017/33, dated July 21, 2017 does not disclose that the respondent is bound to pay interest at 24 per cent. per annum. Similarly, the purchase orders total 6 (six) numbers bearing Nos. PO/V/21-07-DC/RMC/BLR/45, DC/RMC/BLR/47 and PO/P/21-12-2018/787 do not prove that the respondent has agreed to pay interest at 24 per cent. per annum. The purported confirmation of the balance dated March 22, 2019 is denied by the respondent by an e-mail dated May 3, 2019. Therefore, they have sought to dismiss the petition as not maintainable either on facts or on law. 4. Heard Shri Pullela S. Shastry, learned counsel for the petitioner and Shri S. Ajesh Kumar, learned counsel for the respondent, through video conference. We have carefully perused the pleadings of the parties and extant provisions of the Code and Rules made thereunder and the law on the issue. 5. Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings under section 21 of the Arbitration and Conciliation Act, 1996 under the Act. Commencement of arbitration proceedings covered by section 21 of the Arbitration and Conciliation Act, 1996 under the Act provides as under : "21. Commencement of arbitral proceedings.-Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent." (3) A letter seeking confirmation of balance on March 22, 2019 was independently sent by the applicants (operational creditor) auditor to the respondent. This was returned confirmed by the DGM (Finance) Mr. Manjunath Naik with remark of debit note being issued by the respondent for a part amount. Further, this confirmation was withdrawn by an e-mail dated May 3, 2019 by the DGM, Mr. Manjunath Naik. Subsequently the communications continued and vide their e-mail dated September 21, 2019, Mr. Manjunath I. G. confirmed a balance of Rs. 6,72,16,017 with a difference of Rs. 8,02,261. This difference was also further brought down by further reconciliation as on September 25, 2019. In both the balance c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 16,22,50,080 (rupees sixteen crores twenty two lakhs fifty thousand and eighty only) or bank guarantee for the said amount under section 9 of the Arbitration and Conciliation Act, 1996. It was heard on December 7, 2019. Notice was ordered on December 12, 2019 and the operational creditor was also appeared. (2) It is stated that sample purchase order appended shows that there are arbitration clause in the reverse side. The purchase order is an incomplete document. The corporate debtor is also enclosed the certificate issued by the chartered account reflecting the status of the company. He has also relied upon the judgment of the National Company Law Appellate Tribunal in Neeraj Jain v. Cloudwalker Streaming Technologies P. Ltd. [2020] 10 Comp Cas-OL 266 (NCLAT) ; MANU/NL/0133/2020. (3) The demand notice in question is defective and the same is contrary to the law. The petitioner has failed, even to make out the prima facie case about the sum amount claimed in the company petition. The respondent has already sent reply dated December 9, 2019 to the demand notice dated November 18, 2019 which was received by them on December 6, 2019 by disputing the claim of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute received from the respondent. In this regard, the respondent has sent its reply dated December 9, 2019 to the said demand notice, wherein it is, inter alia, mentioned that the demand notice dated November 18, 2019 was received by them on December 6, 2019. However, the instant company petition was filed before expiry of 10 days' time from the date of the receipt of the copy of the demand notice. Therefore, the petitioner without giving any sufficient opportunity to the respondent has rushed to this Adjudicating Authority by filing the instant application by not disclosing the material facts of the case. The petitioner is supposed to advert to the arbitration application filed by the respondent. 8. It is settled position of law that the provisions of the Code cannot be invoked for recovery of outstanding amount(s). The hon'ble Supreme Court in the case of Mobilox Innovations P. Ltd. v. Kirusa Software P. Ltd. [2017] 205 Comp Cas 324 (SC) ; [2018] 1 SCC 353, has, inter alia, held that the IBC, 2016 is not intended to be substitute to a recovery forum. In another latest judgment rendered in Transmission Corporation of Andhra Pradesh Ltd. v. Equipment Conductors and Cable ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
