9911796707
TMI Blog2021 (6) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... n operational debt which is due and payable by the corporate debtor. An objection has been raised by the corporate debtor, with regards the service of the demand notice, which is not maintainable, as the demand notice was served at the registered office of the corporate debtor as per the MCA records and was returned with the remark 'refused to accept', which is considered as good service in the eyes of law as held by the Hon'ble Supreme Court time and again. Further, disputes have also been raised by the corporate debtor, but there is a clear admission of debt of more than 1 Lakh in reply filed by the corporate debtor in August 2019. The application is admitted - moratorium declared. - Company Petition No. IB-1324/ND/2019 - - - Dated:- 8-6-2021 - Dr. Deepti Mukesh, Member (J) And Sumita Purkayastha, Member (T) For the Appellant : Vikas Tiwari, Adv. and Kumar Deepraj For the Respondents : Dilip Agarwal, Advocate ORDER Dr. Deepti Mukesh, Member (J) 1. The Present Application is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'code') read with Rules 6 of the Insolvency and Bankruptcy (Application to Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand notice under Section 8 of the Code, calling upon the corporate debtor to pay the total amount of ₹ 6,89,68,184/- being the amount payable inclusive of interest (amounting to ₹ 2,35,01,540/-) calculated @ 18% per annum from the due date of each invoices remaining unpaid, along with further interest @ 18% per annum on ₹ 6,89,68,184/- till actual payment. It is stated that demand notice was sent at registered office of the corporate debtor and the same was returned with the remark refused to accept. Thereafter the same was served at the corporate office of the corporate debtor at Noida. The copies of tracking report have been annexed. Inspite of service no reply was sent by the corporate debtor. 7. The applicant filed an application under Section 9 and as per Form V, the total outstanding debt is ₹ 6,89,68,184/- being ₹ 4,54,66,644/- (Rupees Four Crores Fifty-Four Lakhs Sixty-Six Thousand Four Hundred Forty-Four Only) as the principal amount due along with interest of ₹ 2,35,01,540/- 8. The corporate debtor filed an application seeking condonation of delay in filing reply. The said application was allowed vide order dated 30.08.2019. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t failed to honor the commitments and the same was intimated by the corporate debtor in terms of email dated 01.05.2017. The copies of emails have been annexed. g) That various credit notes payable by the applicant are still pending and disputes with the regards the demands of the applicant had been raised by the corporate debtor. It is stated that after adjusting the credit notes an amount of ₹ 1,42,87,068.32/- is payable to the applicant as per books. Hence there exists a pre-existing dispute since 2012, which had been highlighted time and again by the corporate debtor and efforts had been made to settle the said issue but the applicant, purposely to raise unlawful and illegal demand, had filed the said application. 10. The applicant filed rejoinder reiterating the averments of the application, and denying the contentions of the corporate debtor, stated the following: a) That the tracking report only reflects the post office zone and not the delivery address. Further highlighted that at the registered office of the corporate debtor as per the records of MCA, the demand notice was not accepted by the corporate debtor and was returned with an endorsement Recipie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had issued credit notes to support the corporate debtor. f) The applicant states that the corporate debtor in para 20 of the reply had admitted that there is a default of more than 1 Lakh and hence in view of Innoventive judgment, the CIRP must be initiated. Further the applicant states that no dispute had been raised with regards the delayed delivery of good or inferior quality of goods before the issue of demand. Hence there exists no pre-existing dispute. 11. The applicant filed written submissions supporting its contentions and stated the following: a) That good were supplied by the applicant to the corporate debtor and during the period of 05.03.2015 to 09.12.2016, invoices were raised against the corporate debtor amounting to ₹ 4,54,66,644/-, which is unpaid. The goods supplied were never returned nor questioned with regards the quality. Hence the unpaid dues qualify to be an operational debt as envisaged in Section 5(21) of the code. b) The applicant has relied upon the case of NCLAT, in the case of Vivek Jha Vs. Daimler Financial Service India Private Limited Anr. [CA (AT) Insolvency 756/2018, wherein it is stated that if the addressee has left ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teral. b) The corporate debtor has relied upon the citation of Hon'ble supreme Court stating that the it is not permissible to rely on part of admission only, as the admission of the corporate debtor with regards the liability was conditional subject to reconciliation of accounts. Further credit notes were there which was not adjusted in the accounts of the corporate debtor. Also relied upon the citations of Hon'ble Bombay High Court it has been stated that the admission of the corporate debtor must not be treated as estoppel. c) The following citations has been relied upon various orders of Hon'ble Supreme Court, Hon'ble Delhi High Court, Hon'ble NCLAT and coordinate Mumbai Bench, Chandigarh bench and New Delhi Bench. 13. Though there is no specific date of default mentioned, the same issue was considered by the bench and vide order dated 30.01.2020, the bench has decided that the matter is within limitation. Further with regards the issue of limitation the case of Hon'ble NCLAT in Manjeet Kaur Sran Vs. Tricolite Electrical Industries Limited has been relied upon. Accordingly, demand notice was issued on 16.09.2017 and the present applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PL for with the last date of deposition as last working day of the respective month this will help in lowering down current outstanding with SEIPL for Apex. With above plan channel has assured to drop his outstanding to INR 3,50,00,000/- and will have outstanding of ₹ 1,00,00,000/- by 31.12.2017. In our view, if the amount of a debt more than 1 Lakh, if admitted which in this case has also been admitted by the corporate debtor, in terms of email dated 26.04.2017 along with the confirmation in the ledger account filed by the corporate debtor and the said has become due as per their own averments in reply to this application at Para 20, leaving no scope for any further adjudication. We are further strengthened by the law laid down by the Hon'ble Supreme Court in Innoventive Industries Ltd. Vs. ICICI Bank and Ors. - (2018) 1 SCC 407 it is observed and held as follows:- The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
