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TMI Blog2020 (2) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution Process against the Corporate Debtor, West Bengal Biotech Development Limited is hereby admitted - Moratorium declared. - CP (IB) No.1447/KB/2018 - - - Dated:- 10-2-2020 - Jinan K.R., Member (Judicial) Harish Chander Suri, Member (Technical) For the Operational Creditor : 1.Mr. Debmalya Ghoshal, Advocate 2.Mr. Ovik Sengupta, Advocate 3.Mr. Niladri Khanra, Advocate For the Corporate Debtor : 1. Mr. G, Choudhary, Advocate 2. Mr. S. Majumdar, Advocate ORDER Jinan K.R., Hon ble Member (Judicial) 1. Keshav Park Private Limited-Operational Creditor filed this application under Sec.9 of the Insolvency and Bankruptcy Code, 2016 (in short IB Code) read with Rule 6 of the Insolvency and Bankruptcy Code (Application to Adjudicating Authority) Rules, 2016 for initiation of corporate insolvency resolution process as against the Corporate Debtor/ West Bengal Biotech Development Limited on the allegation that the corporate debtor has committed default in payment of operational debt to the tune of ₹ 87,48,130.00 (Rupees Eighty-Seven Lakhs Forty-Eight Thousand One Hundred and Thirty) including the interest @ 18% from 11/02/2012 for the services rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the matter and, therefore, cannot be decided in a summary manner. The claim of the Operational Creditor is also barred by limitation and the Operational Creditor has suppressed the material facts, the documents produced on the side of the Operational Creditor are fabricated and created for the purpose of the present litigation. The Operational Creditor was engaged in the renovating works in order to carry out glass partition, electrical fittings, air condition fittings and false ceilings in respect of a building situated at EN-24,9t Floor, Sector V, Salt Lake, Kolkata. In terms of the letter of work order issued to the Operational Creditor, the Operational Creditor was required to carry out the above said works in terms of for the plan attached along with letter dated 22th February, 2011. The work which has been done is contrary to the plan and not in consonance therewith. Moreover, there is no completion certificate to show that the work has been completed. In fact the work has remained incomplete. The Operational Creditor also failed to cause produced original invoices, vouchers from third party vendors, who were inducted by the Operational Creditor in order to carry out the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor dated 224 February, 2011 (Annexure-D) by the Corporate Debtor to the Operational Creditor to carry out glass partition, electrical fittings, air condition fittings and false ceilings in respect of a building situated at Salt Lake, Kolkata. It is contended by the learned counsel for the Operational Creditor that entire work has been carried out with satisfaction of the Corporate Debtor and the Corporate Debtor failed in payment of ₹ 29,09,890/- with interest @ 18% which comes to ₹ 58,38,240.00/- totaling to ₹ 87,48,130.00/- It is further contended on the side of the Operational Creditor despite reminder letters issued dated 28/05/2012, 05/06/2013, 14/11/2013, 01/04/2014 and 07/06/2016 (Annexure-F). The Corporate Debtor failed to pay the outstanding amount due and claimed by the Operational Creditor, and thereby was compel led to issue a demand Notice under section 8 of the Code on 7 November, 2017 demanding the outstanding amounts. The demand notice was served upon the corporate debtor. Despite service of demand notice, the Corporate Debtor has not paid the amount and no notice of dispute also has been served upon the Operational Creditor, but issued reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the amount repeatedly from 28/05/2012 onwards till 07/06/2016. Failing payment of the amount in demand on the side of the Corporate Debtor, the Operational Creditor was compelled to issue demand notice as per section 8 (1) of the Code. That notice was issued on November 7, 2017 and it was admittedly received by the Corporate Debtor and also sent a reply dated 14/12/2017. The reply of the Corporate Debtor is the main document relied on the side of the Operational Creditor to prove that the claim of the Operational Creditor is not barred by limitation but was within the period of limitation. So, considering the reply evidently sent by the Corporate Debtor is good to read. It reads as under:- West Bengal Biotech Development Corporation Limited Kolkata Biotech Park EN-24, Sector-V, Salt Lake, Kolkata-91 No. 90-WBBDC/1E-15/10 Dated 14/12/2017 From: The Managing Director, West Bengal Biotech Development Corporate Limited En-24, Sector-V, Salt Lake, Kolkata- 700 091 To: The Director, Keshav Park Private Limited 32, Ezra Street, 6% Floor, Room No. 664 Kolkata-700001 Sub:-Demand__Notice/Invoice demanding payment in respect__of oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. At this juncture, learned counsel appearing for the Operational Creditor referred to a judgement of the Hon ble High Court of Mumbai reported in SCC Online (1993 Mh.J.) South Eastern Roadways, Bombay Vs. U.P. State Agro Industrial Corporation Ltd. The above said judgment cited by the Operational Creditor has got some similarity of the facts with the case in hand. In the said case also a letter calling for settlement similar to the letter in the case in hand seemed to have been considered by the Hon ble High court. It seemed to have been disputed in the above said case on the side of the person who issued the letter. It is quite profitable to read the letter in dispute in the above said judgment, which reads as follows:- Please refer to your notice dated 15th May,1978 given by you on behalf of your client(plaintiff)... In this regard it is to inform you that matter will be settled between our General Manager, Shri S. N. Khanna, who is on tour to Bombay... 12. Ona reading of the above said judgement, it is also understood that the author of the letter was examined in evidence and after an elaborate discussions, the Hon ble High Court of Mumbai has held that If Ex. 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay even after demand, this application is liable to be admitted. 15. In the result, we admit this application on the following orders: - ORDERS i. The application filed by the Operational Creditor under section 9 of the Insolvency Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, West Bengal Biotech Development Limited is hereby admitted. ii. We declare a moratorium and public announcement in accordance with Sections 13 and 15 of the IBC, 2016. iii. Moratorium is declared for the purposes referred to in Section 14 of the Insolvency Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency Bankruptcy Code, 2016 shall be made immediately. iv. Moratorium under Section 14 of the Insolvency Bankruptcy Code, 2016 prohibits the following: a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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