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TMI Blog2021 (6) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... and the commencement of the CIRP is ordered against the corporate debtor viz., M/Hemam Engineering Industries Ltd, which ordinarily shall be completed within 180 days, reckoning from the day this Order is passed. Application admitted - moratorium declared. - IB-900(ND)/2020 - - - Dated:- 5-4-2021 - Ch. Mohd Sharief Tariq, Member (J) And Narender Kumar Bhola, Member (T) For the Appellant : Nivedita R. Sarada and Rachat Sharma, Advocates For the Respondents : Vikas Dutta, Advocate ORDER 1. The Ld. Counsels for the Operational Creditor and Corporate Debtor are present. Pleadings are complete. 2. Under consideration is CP (IB)-900(ND)/2020 filed under Section 9 of the IBC, 2016 with the prayer to initiate CIR Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid within 60 days from the date of issuance of invoice and ultimately stopped making the payment of the subsequent invoices raised during the period from 28.09.2019 to 28.11.2019 amounting to ₹ 4,73,33,795/-. However, few cheques were issued which are got bounced. The copies of the invoices raised are placed on record at Page 35 to 63 of the type-set filed with the petition, the acknowledgements given on different dates after receiving the consignment are also placed on record. 6. The demand notice has been issued by the Operational Creditor on 12.02.2020 wherein the same amount was claimed to which no reply was given by the Corporate Debtor. The Operational Creditor has filed affidavit in compliance of Section 9(3)(b) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Creditor is authorized to file suit for recovery against the alleged Corporate Debtor. It is further stated that the said Resolution is limited to the filing of suit for recovery of alleged financial dues against the Corporate Debtor and not for the purposes of filing of the present application. So, the present proceedings cannot continue on the basis of faulty Board Resolution. 8. In rebuttal, the Ld. Counsel for the Operational Creditor drew our attention to the Board Resolution dated 06.02.2020 placed on record at Page 252 of the type-set filed with the petition wherein, it is stated that Mr. Praveen Chand Maheshwari, Managing Director and/or Shri Rajeev Maheshwari, Joint Managing Director of the Company is authorized to appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er stated that the Corporate Debtor has paid additional amount of ₹ 50,00,000/- through Demand Draft and the Operational Creditor is guilty of suppression of facts and has filed the present application based upon an incorrect and untrue statement of accounts. 10. In relation to 63 debit notes stated to be raised by the Corporate Debtor for a total sum of ₹ 55,07,969.35/-, no record is placed on the file to establish that any of the debit notes is raised prior to issuance of the demand notice dated 12.02.2020. It is only on 17.02.2020 after issuance of the demand notice the Corporate Debtor has come up with the plea about the debit notes, which appears to be afterthought and mere bluster. Therefore, the plea stands rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised same objections, to the report filed by the Chartered Accountant, as are discussed in the preceding paragraphs and stood rejected. The Chartered Accountant has clearly brought out in the report that no communication has been placed on record by the corporate debtor to demonstrate that at any point of time prior to the demand notice the debit notes were sent to Operational Creditor and accepted. The Ld. Counsel for the corporate debtor has shown minutes dated 09.11.2020 with regard to one debit note for an amount of ₹ 2,54,650/- but there is no mention of the name of the Operational Creditor on the said minutes. Therefore, the document is not admissible in evidence. It is further recorded in the report of the Chartered Accountant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 15. The supply of essential goods or services of the Corporate Debtor shall not be terminated, suspended, or interrupted during moratorium period. The provisions of Sub-Section (1) of Section 14 shall not apply to such transactions, as notified by the Central Government. 16. The Operational Creditor has not proposed the name of any Resolution Professional for appointment as Interim Resolution Professional ('IRP'), therefore, Mr. Vikas Garg reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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