9911796707
TMI Blog2017 (12) TMI 1810X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof have already been made, it is not clear as to how the applicant can claim default of the entire original amount. The applicant has not come with clean hands and has not disclosed complete and correct facts of the case. The discloser in the requisite Form 5 is not full and true. Instead of claiming remaining unpaid settlement amount, if any, the applicant has claimed in Part-IV of Forrn- 5 entire original due amount of ₹ 18,60,921, without mentioning the settlement and appropriation of payments already received The demand notice under Section 8 of the Code was issued in the present case on 14.10.2017. The Respondent, however, has enclosed four receipts stamped and signed by the applicant firm, dated 02.01.2017, 30.01.2017, 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Islam, Advocate For Corporate Debtor: Mr. Uttam Dutt, Advocate, Mr. Tarun Sharma, Advocate ORDER Per: S. K. Mohapatra, Member 1. This is an application filed by M/s Sonitech Travels Co. a proprietorship Firm, under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 (for brevity the Rules ) for initiation of Insolvency Resolution Process in respect of Respondents No. 1 to 9. 2. The applicant has submitted in its application that all the corporate debtors approached the applicant and represented to be desirous of working and dealing with the applicant to get transportation/travel service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (n) of sub section (1) of section 2 of the Limited Liability Partnership Act, 2008, or iii. Any other person incorporated with limited liability under any law for the time being in force (but shall not include any financial service provider). 5. However PART-III of the Code deals with insolvency resolution and Bankruptcy for individuals and partnership firms. Respondent No. 2 to 9 have been described as directors and authorized signatory of Respondent No. 1 Company and not as personal guarantor of such Company. Respondent No. 2 to 9 therefore come under the preview of sub-section (g) of Section 2 of the Code. Accordingly PART-II of the Code is not applicable to Respondent No. 2 to 9 who are individuals. 6. As a sequel to the af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company. It is further stated that since the applicant has deliberately trying to conceal the fact of settlement, the applicant is liable to be punished under Section 76 of the Code. 9. The Respondent has enclosed the receipts dated 02.01.2017, 30.01.2017, 07.02.2017 and 07.03.2017 in its reply. The text of each of the receipts is almost similar. For proper appreciation of the case the content of one of the receipts is reproduced below: Receipt Dated: 2nd January, 2017. Received an amount of ₹ 2,00,000/- (Rs. Two Lacs Only) vide DD no. 170382 dated 27.12.2016 from Centre For Vocational And Entrepreneurship Studies Towards Settlement amount of ₹ 14,00,00,000/- ( Rs. Fourteen Lac Only) against 18,60,921/- (Rs. Eightee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of payments already received. 11. Secondly, the demand notice under Section 8 of the Code was issued in the present case on 14.10.2017. The Respondent, however, has enclosed four receipts stamped and signed by the applicant firm, dated 02.01.2017, 30.01.2017, 07.02.2017 and 07.03.2017 respectively which clearly shows that the settlement and payments mentioned therein were made much prior to the issuance of demand notice under Section 8 of the Code. It is the case of the respondent that the settlement was made to enable withdrawal of the cases filed under section 138 and was much prior to the notice issued under Section 8 of the Code. There is force in the contention of the Respondent No. 1 that the amount claimed in the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be ruled out and there is clear dispute on the claimed amount of debt. Hence, the amount of claim raised by the applicant clearly falls within the ambit of disputed claim. Section 9 (5) (ii) (d) of the Code provides that adjudicating authority shall reject the application if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. 15. For the reasons stated above this application fails and the same is rejected. 16. We, however, make it clear that any observations made in this order shall not be construed as an expression of opinion on the merit of the controversy and the right of the applicant before any other forum shall not be prejudiced on account of dismissal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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