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TMI Blog2020 (5) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent is not tenable. The Respondent has taken defence of existing dispute prior to the issue of Demand Notice by the Petitioner on 03.02.2018 but the fact is that the Respondent has filed Suit on 26.03.2018 against the Applicant i.e. after receipt of Demand Notice inter alia seeking damages and losses suffered under the said PO by the Respondent - the Respondent also filed a Suit on 15.03.2018 against Rawalwasia an associate concern in respect of the breaches and losses suffered by the Respondent under the HSS Agreement by the Respondent beari g Civil Suit No.36 of 2018 before the Honble Civil Judge Senior Division Jalgaon at Jalgaon. Hence, it is not considered as dispute. The other suit has been filed against the Associate Company of the Petitioner for violation of HSS agreement but it does not relate in any way to the Petitioner's claim against the Respondent. Hence, this defence is not entertained. The application is complete and is admitted - moratorium declared. - CP(IB) 393/9/NCLT/AHM/2018 - - - Dated:- 28-5-2020 - Mr. HARIHAR PRAKASH CHATURVEDI AND Mr. PRASANTA KUMAR MOHANTY, JJ. For the Applicant: Mr. Pavan S. Godiawala Mr. Naishal J. Modi, Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 R 20 28.10.2016 30% 91,088.00 33,914.68 2 R 21 28.10.2016 30% 82,920.00 30,873.50 3 R 22 28.10.2016 30% 83,689.00 31,159.82 4 R 23 28.10.2016 30% 83,144.00 30,956.90 5 R 24 28.10.2016 30% 82,632.00 30,766.27 6 R 25 28.10.2016 30% 82,921.00 30,873.87 7 R 26 28.10.2016 30% 83,401.00 31 052.59 8 R 27 28.10.2016 30% 50 860.00 18,936.64 9 R 28 28.10.2016 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor has not paid INR. 15,73,279.00 and failed, neglected and omitted to pay the dues. The Corporate Debtor has not paid any payment for supply of goods against above mentioned invoices till date. 6. It is submitted that the Corporate Debtor is liable to make ayment of the debt amount of INR.21,57,700.38 along with interest at the rate of 30% p.a. from the date of default i.e. due date of each invoice till the date of actual payment. Therefore, the Corporate Debtor is entitled to pay interest of INR.5,84,421.38 up to 31.01.2018. 7. It is submitted that the Operational Creditor has issued a Demand Notice in Form 3 and Form 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with annexure mentioned therein on 05.02.2018 and delivered it to the registered office of Corporate Debtor through Speed Post on 09.02.2018. 8. It is submitted that the Operational Creditor has received a reply of notice from the Corporate debtor through their Lawyer IC Legal on 19.02.2018, which expresses the complete denial of the debt demanded by Operational Creditor contrary holding liable the Operational Creditor to pay an aggregating sum of INR.4,44,17,608 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard on 10.01.2019, 20.02.2019, 20.08.2019, 11.09.2019, 05.11.2019 20.11.2019. 12.10.2018, 18.04.2019, 16.09.2019, Thereafter, arguments from both side were heard and concluded. 15. In response to the present I.B. Petition filed by the Petitioner, the Corporate Debtor/ Respondent has filed its Written submissions on 06.01.2020 as under: 15.1 It is stated that the Respondent is a Private Limited Company incorporated under the Companies Act, 1956, and is engaged in the business inter alia of manufacture of starch products and other products for the past may years and has acquired vast reputation and goodwill in the industry. It was desirous of purchasing coal for use in its boiler in the factory for the production of starch and other products. The Respondent's sister concern Shri Tradco Deesan Private Limited ( STDPL ) also required coal for Industries Private Limited represented, warranted and assured to the Respondent inter alia that Rawalwasia was competent and in a position to supply the quality, quantity and specification of coal required by the Respondent and STDPL. Mr. Samir Agarwal further represented that Rawalwasia had already imported 71700 metric tons on 25. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a Suit on 15.03.2018 against Rawalwasia in respect of the breaches and losses suffered by the Respondent under the HSS Agreement by the Respondent bearing Civil Suit No.36 of 2018 before the Hon ble Civil Judge Senior Division Jalgoan at Jalgaon. It is also pertinent to notc that the Applicant has not denied and challenged the statement, averments and contentions of the Applicant in the above mentioned Suit. 15.8 It is stated that there was a pre-existing dispute between the parties even before the receipt of the Form-3 notice dated 03.02.2018 from the Petitioner. The respondent in order to substantiate the existence of the dispute between the parties. In view of the said correspondence that a dispute was already in existence way before the receipt of the notice under IBC which Petition is liable to be rejected. 15.9 It is stated that the existing disputes between the parties and in view of the Suit for damages pending before the Court against the Petitioner, the Petitioner cannot seek to invoke the provisions of the Bankruptcy Code for recovery any amount money, wherein admittedly the disputes between the parties existing from the very beginning such an exercise in im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge Senior Division Jalgaon at Jalgaon. However, the Respondent also filed a Suit on 15.03.2018 against Rawalwasia an associate concern in respect of the breaches and losses suffered by the Respondent under the HSS Agreement by the Respondent beari g Civil Suit No.36 of 2018 before the Honble Civil Judge Senior Division Jalgaon at Jalgaon. Hence, it is not considered as dispute. 17.7 The other suit has been filed against the Associate Company of the Petitioner for violation of HSS agreement but it does not relate in any way to the Petitioner's claim against the Respondent. Hence, this defence is not entertained. ORDER 18. Considering the material, papers filed by the Petitioner on record, the arguments of the Counsels from the both sides and the facts mentioned in the Para No. 20, 20.1, 20.2, 20.3, 20.4, 20.5, 20.6 20.7 this Adjudicating Authority is satisfied that, a) Existence of debt is above Rs. One Lac; b) Debt is due; c) Default has occurred on 10.11.2016; d) Petition has been filed within the limitation period as the invoices are 2016 the date of default is 10/ 11/2016 whereas the Application is filed on 30.07.2018 which is within 3 years of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement within two days with this Registry. The Interim Resolution Professional is further directed to make public announcement of moratorium in respect of Corporate Debtor Company soon after receipt of an authenticated copy of this order and to act further as per the order/direction issued by this Adjudicating Authority and to follow the provisions of Section 13 and 14 and relevant provisions of the Insolvency and Bankruptcy Code. The Interim Resolution Professional shall perform all his functions contemplated, inter-alia, in Sections 15, 17, 18, 19, 20 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the 'Code', Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other persons associated with the management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the day-to-day affairs of the 'Corporate Debtor'. In case there is any violation, the Interim Resolution Profe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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