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TMI Blog2019 (11) TMI 1690X X X X Extracts X X X X X X X X Extracts X X X X ..... rein referred to as 'Respondent/Corporate Debtor') was incorporated on 14.07.1980, bearing CIN: U45201KA1980PTC003879 and its authorized Share Capital is Rs. 1,00,00,000/- consisting of 29,225, Equity Shares of Rs. 100 each. The issued and subscribed capital is Rs. 94,61,396/- consisting of 64,433, Equity Shares of Rs. 100 each fully paid up. (2) Rajeev Shetty (herein after referred to as 'Petitioner/Operational Creditor') was initially appointed as an 'Associate Vice President-Projects' vide letter dated 03.10.2008, and was subsequently confirmed vide letter dated 20.08.2009. His initial package was Rs. 1,87,250/- per month, which was subsequently revised to Rs. 1,59,160/- per month, vide letter dated December 3rd, 2008, and again it was revised to Rs. 4,42,260/-per month, vide letter dated 12th January, 2015. Thereafter, he has resigned for the post on 08.04.2015, which was accepted, and thus he was relieved from the employment at closing hours of 10.06.2015, vide certificate dated 07.07.2015. He had worked in the office of Corporate Debtor from 03.10.2008 to 10.06.2015. However, his dues were not settled. The Petitioner started sending several emails by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Respondent, and make wrongful gain in one or the other way. The Petitioner had earlier filed a similar Application before this Adjudicating Authority against the Respondent vide C.P. (IB) No. 12/BB/2017. When the Respondent entered appearance and filed its preliminary objections, the Petitioner withdrew the application only to fill in the lacunae on his part. The present Application is yet another attempt to harass the Respondent despite knowing the fact that the Petitioner is not entitled to any relief. (2) It is stated that Section 3(8) of the IBC, 2016 defines the terms "Corporate Debtor" as a corporate person, who owes a debt to any person. Further, Section 5(20) defines Operational Creditor as a person to whom an Operational Debt is owed and includes any person to whom such debt has been legally assigned or transferred. The Corporate Debtor does not owe any debt whatsoever to the Petitioner. In fact, there is no debt much less an operational debt owed to the so called Operational Creditor. Such being the case, there is no question of Corporate Debtor having defaulted in paying the debt that has become due and payable but not repaid to the Operational Creditor. It is conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based on these alleged e-mails, the Petitioner claims that the alleged debt is accepted and acknowledged by the Respondent vide the aforesaid e-mails. The Petitioner claimed that said Mr. Sanjay and Mr. H.S. Raghava are the employees of the Respondent having sent the said e-mails and thus the debt in question is deemed to be accepted. However, they are not part of administration of Corporate Debtor at the relevant point of time. Mr. Sanjay, who was working as Chief Financial Officer of the Respondent, was relieved from the employment vide Relieving order dated 22.12.2016. Likewise, Mr. H.S. Raghava, working as head of Human Resource Department with the Corporate Debtor, was also relieved from the employment vide Relieving order dated 01.08.2016. In other words, as on 22.12.2016 Mr. Sanjay was no longer in employment with the Respondent and as on 01.08.2016 Mr. H.S. Raghava was also not working in employment with the Respondent. Such being the case, the alleged e-mails dated 11.01.2017 and 22.12.2016 along with alleged attachments of a tabular from claimed to have sent by the Respondent are all cooked up and created only for the purpose of the present case. It is alleged that Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide email dated 11.01.2017 issued by the Financial Department of the Company. It is also pointed out that he was relieved on 10.06.2015 without any adverse remarks. Even though, notice was acknowledged by the Corporate Debtor and the Company, they did not reply to the legal notice. Aggrieved by that non-payment and non-reply of the legal notice, the Petitioner has earlier filed C.P. (IB) No. 12/BB/2017 by inter alia seeking to initiate CIRP in respect of Corporate Debtor namely M/s. Skyline Construction and Housing Pvt. Ltd. Accordingly, the Respondent has filed Preliminary Statement of Objections dated 31.08.2017 by raised few technical grounds on the format of demand notice issued to the Corporate Debtor. Therefore, the Petitioner herein, instead of rectifying the mistakes of the Company Petition has filed memo dated 26.10.2017 by praying to the Adjudicating Authority to permit him to withdraw the Company Petition with a liberty to file fresh Company Petition in the interest of justice and equity. Accordingly, the Adjudicating Authority passed an order dated 26.10.2017 by granting permission to withdraw the case with a liberty to file fresh Company Petition. Therefore, the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dispute Redressal Commission Bangalore, 98 Complaints are pending before Karnataka State Consumer Dispute Redressal Commission Bangalore, 46 Execution Petitions are pending before Karnataka State Consumer Dispute Redressal Commission Bangalore, 32 Complaints are pending before Karnataka District Consumer Forum Bangalore, 16 Complaints are pending before Karnataka District Consumer Forum Bangalore (Bangalore 2nd Additional), 12 Complaints are pending before Karnataka District Consumer Forum Bangalore (Bangalore 3rd Additional), 5 Complaints are pending before Karnataka District Consumer Forum Bangalore (Bangalore 4th Additional). There are more than 25 Cheque bounce, 30 civil cases and 28 Criminal cases against the Corporate Debtor and the Director namely Shri Avinash Prabhu and his brother Shri Deeraj Prabhu for cheating home buyers, vendors, Land owners, Banks, Employee etc. 9. In pursuant to the said memo dated 25.10.2019, the Corporate Debtor has filed Objections dated 13.11.2019 by inter alia contending as follows: (1) The Corporate Debtor is a Private Limited Company registered under the Companies Act, 1956, and is a reputed Company in the field of construction and developm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that all these cases referred by the Operational Creditor have got no bearing on the facts of this case. The Directors of the Company are free citizens and are not in the custody of any authority. The facts of these case which are mentioned above are entirely different from the facts on hand. 10. The Petitioner has filed an Affidavit dated 18.12.2017, U/s 9(3) of the Code, by inter alia stating that statutory notice dated 09.11.2017 was issued to the Respondent by electronic mail and also by Registered Post and after acknowledging it, they have not responded. Therefore, it is to be deemed that there is no pre /post existing dispute with regard to the claim made by the Petitioner. The Petitioner has also filed his Bank (HDFC ) statement dated 14.12.2017 wherein it is certified that there is no credit entry of Rs. 58,58,768/ in the Account of Petitioner/s SB A/c 05231141204915 during period 09.11.2017 to 13.12.2017. Moreover, the defence raised in the statement of objections are not all tenable and they are liable to be rejected. Another C.P. (IB) No. 43/BB/2018 is pending against the Corporate Debtor. Since there is no dispute raised with regard to the outstanding amount in que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her case as mentioned supra, apart from several cases before several Courts. Therefore, it prima facie show that the Company is not solvent Company as claimed. The instant Company Petition is filed in accordance with law, and also suggested a qualified Resolution Professional namely Mr. S. Viswanathan, with Registration No. IBBI/IPA-001/IP-P00538/2017-18/10963, who has also filed written Consent in Form-2 dated 03.09.2019, who is eligible to be appointed as IRP. It is settled position of law that once debt and default in question is proved, and there being no dispute raised by the Corporate Debtor, in an Application/Petition filed U/s 9 of Code, it is mandatory for the Adjudicating Authority to initiate CIRP, appoint IRP, impose moratorium etc. Therefore, we are convinced that there is a debt and default in question, which is not in dispute and thus it is fit case to admit by initiating CIRP in respect of Corporate Debtor. 03.09.2019, who is eligible to be appointed as IRP. It is settled position of law that once debt and default in question is proved, and there being no dispute raised by the Corporate Debtor, in an Application /Petition filed U/s 9 of Code, it is mandatory for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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