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TMI Blog2019 (8) TMI 1745X X X X Extracts X X X X X X X X Extracts X X X X ..... e its case without supporting evidence. The contention on the side of the CD that the reconciliation account is a fabricated one, cannot be upheld - It is a circumstance proving the case of the OC that the debt as claimed by the OC is payable by the CD. The OC has succeeded in proving delivery of goods and CD has failed in proving per-existence of a dispute as alleged. Accordingly, the next question requires for consideration is whether the OC complied all the requirements to initiate the CIRP as against the CD. The application filed being found complete and that a certificate in compliance of Section 9(3)(c) and affidavit in compliance Section 9(3)(b) being produced and since no name of an Interim Resolution Professional is proposed in compliance of requirement to be met out as per Section 9(3)(e) the application is found complete. The dispute raised by the CD is found unsustainable under law. The operational debt as claimed by the OC is found payable by the CD. Petition admitted - moratorium declared. - C.P. (IB) No. 803/KB/2018 - - - Dated:- 20-8-2019 - Shri Jinan, K.R., J. For the Operational Creditor: Mr. Rohit Sharma, Pr. CS For the Corporate Debtor: M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process of law without compliance of the requirements under section 9 of the Code, and that the applicant has approached this Tribunal with unclean hands by suppressing material facts and therefore this application is not maintainable. 7. Secondly, it contends that the goods referred to as per the invoice were never supplied to the CD and therefore the OC has no /ocus standi to make any claim against the CD. 8. Thirdly, it contends that the goods referred to in the application were rejected by the CD as the goods were sub-standard, inferior and absolutely unusable. The entire goods received by them were defective and unusable. The applicant has also failed and neglected to replace the said goods despite repeated requests to do so. The applicant had never made any claim against the CD but informed that the applicant has withdrawn and cancelled the Invoices which had been prepared. It also further contends that the invoices disclosed in the application had not been submitted to the CD and denied the signature appearing on the balance confirmation allegedly issued by the CD and further contends that the purported signature appearing on the said documents does not belong to any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruptcy (Application to Adjudicating Authority) Rules, 2016 attempted to prove that the OC has failed in proving delivery of Form 3 notice along with the invoices to be attached with the notice and therefore, an application of this nature is not maintainable. He refers to the invoices annexed with the application and annexed with the Demand Notice. A demand notice in the case in hand admittedly was received by the CD and the CD had sent a reply to the Demand Notice. It is contended that the demand notice was not issued as per Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (In Short, Adjudicating Authority Rules ) . 13. Ona perusal Form 3 notice issued on 21/03/2018, | do not find any material defect. On the other hand all the requirements to be met as per Rule 5 of the Adjudicating Authority Rules are seen complied by the OC. The OC has annexed a consolidated statement of account on the strength of the documents mainly relied upon by the OC in the application. It includes, copy of Annexure I, Exhibit A, a consolidated details of transactions on account of which debt fell due; Annexure I, Exhibit B, a copy of e-mail evidently issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Amrit Feeds. Amrit Feeds is admittedly one another unit of the CD. As per the purchase order Annexure-I, Exhibit - B, it has come out in evidence that the OC has agreed to supply the above referred raw material to the various units of the CD at Howrah, Bankura, Rajasthan and Varanasi. Admittedly, the CD has different Units as referred to above. The business transactions in between the CD and OC is also an admitted fact. As per the available documents in the case in hand the OC also supplied goods to the Amrit Feeds. All other 7 challans contain stamp of APHL with initial. Out of that 4 stamps seen belonging to APHL Bankura unit and remaining 3 stamps belong to APHL, Howrah, a unit of APHL in West Bengal. Out of 8 way bills only 2 seen containing affixture of seal of APHL. The above said documents demonstrate without any shadow of doubt that the goods referred to in the invoices were delivered to the CD as alleged. In the said circumstances, there is nothing further to investigate so as to test the correctness of the contentions on the side of the OC. The evidence available is sufficient to come to a conclusion that the objection that the goods were not delivered to the CD is fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quality therefore no amount is due to the OC. So let me see whether there is any merit in the said contention. This contention seems to have been raised first time in the reply notice after the receipt of the demand notice. There is nothing in evidence to prove that the CD demanded from the OC to replace the goods as the goods supplied were defective or substandard. In the reply notice dated 07/04/2019 alone, the CD has taken the said contention that the goods sent to the CD are defective and could not be put to use. This contention can only be taken as a contention in order to stage manage evidence so as to establish that there is a pre-existing dispute. The above said contention is, therefore, found unsustainable. The CD has failed in proving that there exists pre-existing dispute prior to the receipt of the demand notice. 22. One another contention stressed upon by the Ld. Sr. Counsel is that there was no demand prior to the demand notice issued by the OC claiming the amount allegedly due to the OC and that the confirmation of balance payable is a fabricated one. The above said submission is also not found true. The Annexure I, Exhibit F, is a demand notice issued by way of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the reconciliation account is a fabricated one. It is a circumstance proving the case of the OC that the debt as claimed by the OC is payable by the CD. 25. The above said circumstances lead me to a legitimate conclusion that the raising of dispute has been raised by the CD with an ill-motive not to pay the operational debt found due to the OC. These points are answered in favour of the OC. Point No. (iii) 26. Answering to point Nos. (i) and (ii) I have come to a conclusion that OC has succeeded in proving delivery of goods and CD has failed in proving per-existence of a dispute as alleged. Accordingly, the next question requires for consideration is whether the OC complied all the requirements to initiate the CIRP as against the CD. The application filed being found complete and that a certificate in compliance of Section 9(3)(c) and affidavit in compliance Section 9(3)(b) being produced and since no name of an Interim Resolution Professional is proposed in compliance of requirement to be met out as per Section 9(3)(e) the application is found complete. The dispute raised by the CD is found unsustainable under law. The operational debt as claimed by the OC is found p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Corporate Insolvency Resolution Process. (viii) Provided that where at any time during the corporate insolvency resol ution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, of Insolvency Bankruptcy Code, 2016 the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. (ix) Necessary public announcement as per Section 15 of the Insolvency Bankruptcy Code, 2016 may be made. (x) Mr. Ketan Mukhija, having Registration No. IBBl/lPA-003/lP-N00089/2017-18/10853 (Mobile No. 98306 39399) with e-mail id: [email protected] is hereby appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a meeting of Committee of Creditors for evolving a resolution plan. The Interim Resolution Professional is directed to produce Form 2 and written communication within one week from the date of the receipt of the order. (xi) The Interim Resolution Professional / Resolution Professional to conduct CIRP of the Corporate Debtor as per time line pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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