9911796707
TMI Blog2021 (12) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner side not proved that the said letters were sent as averred in the petition. Thus, on the respondent side raised the acceptable dispute regarding the entitlement of petitioner for the amount claimed in the petition and the interest - The respondent in its reply notice dated September 6, 2019 denies its liability, the dispute raised by the respondent is substantial in nature it needs further investigation. Thus, this point is answered. Whether the application filed without authorisation of the applicant-company is maintainable? - HELD THAT:- The operation creditor is a company registered under Companies Act, 1956. In the application there is no averments how the person who filed this application is competent to file the application on behalf of company. Even though he is designated as managing director would have no authority to file the application on behalf of company. There is no board resolution passed authorising the person who filed this application on behalf of the company. In form 5, Chapter II serial No. 6 specifically requires to enclose authorisation. The non-filing of board resolution goes to the root of the case. In this situation it is answered that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said outstanding dues, however, no response was received from the corporate debtor. (iii) Therefore, the operational creditor having no other option, issued demand notice in form 3, dated July 24, 2019 under covering letter dated August 9, 2019 issued through their authorized representative Sri Rohit Sharma, practising company secretary in terms of rule 5(1)(a) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with copies of invoices raised to the corporate debtor and statement of debt which are served on the corporate debtor on September 2, 2019 for claim of ₹ 1,72,52,986 (i. e., outstanding due of ₹ 63,25,464 plus interest of ₹ 1,09,27,522). However, after service of demand notice in form 3 along with copies of the invoice, etc., the corporate debtor for the first time raised dispute vaguely on the grounds of quality, delay in supply and adjustments, etc., without any evidence, vide reply dated September 6, 2019 issued by one Sri Akash Sharma, practising company secretary claiming to be authorized representative of the corporate debtor. As per the balance-sheet as at March 31, 2015 as at March 31, 2016 as at March 31, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, no dispute is raised against the mutual settlement held on July 15, 2015 and secondly the applicant chose to serve the respondent with a demand notice and file the said application. In light of the above, it can be clearly evidenced that the applicant is desperate to extract money out of the respondent, fraudulently and in a coercive manner, claiming a debt which does not even exist in the books of the respondent. (iii) It is stated that a notice of dispute has been sent by the respondent/corporate debtor by virtue of the mutual settlement dated July 15, 2015 wherein it has been stated that an amount of ₹ 3,00,000 is being paid as full and final settlement towards the outstanding debt. Furthermore, it was also highlighted by the respondent/corporate debtor that the materials that had been delivered by the operational creditor were of inferior quality and were not in a good condition. Moreover, the supply of goods by the operational creditor was also delayed because of which the corporate debtor suffered irreparable loss. (iv) Therefore, it is apparent that the applicant chose to file the purported application only to misuse the provisions of the Code. I state that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the pro visions of the Companies Act is mandatory, any transgression of the same being punishable by law. However, what is of importance is that notes that are annexed to or forming part of such financial statements are expressly recognised by section 134(7). Equally, the auditor's report may also enter caveats with regard to acknowledgments made in the books of account including the balance-sheet. A perusal of the aforesaid would show that the statement of law contained in Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff [1961] SCC Online Cal 128 ; [1962] AIR 1962 Cal 115, that there is a compulsion in law to prepare a balance-sheet but no compulsion to make any particular admission, is correct in law as it would depend on the facts of each case as to whether an entry made in a balance-sheet qua any particular creditor is unequivocal or has been entered into with cave ats, which then has to be examined on a case by case basis to establish whether an acknowledgment of liability has, in fact, been made, thereby extending limitation under section 18 of the Limitation Act. In our case on the petitioner side relies upon balance-sheets of the respondent-com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quires further investigation and ensure that the dispute is not based on patently unbelievable, vexatious and without any evidence. 10. The petitioner claims due amount of ₹ 63,25,464 towards principal and a sum of ₹ 1,09,27,522 towards interest. The interest amount is almost nearing double the principal amount. According to the petitioner the respondent placed the purchase order dated April 30, 2013 found in page 180 for supply of 11,000 MT of coal (grade F) at the rate of ₹ 1,358 for 5,000 MT, at the rate of ₹ 1,198 for 3,000 MT and at the rate of ₹ 1,298 for 3,000 MT. The petitioner supplied the coal through five invoices at the rates of ₹ 1,606, ₹ 1,728 and ₹ 1,868 and raised the bills for ₹ 2,03,15,464 inclusive of 5 per cent. VAT tax. Admittedly the coals were supplied to the higher rates than rates quoted in the purchase order. The difference in amount in this regard according to respondent is ₹ 50,70,060. On the petitioner side not stated anything in the pleadings about the difference in rate between the purchase order and invoices, but during arguments it is argued that the rates mentioned in the invoices ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under section 27 of the General Clauses Act, 1897 cannot be invoked. In this situation petitioner side not proved that the said letters were sent as averred in the petition. Thus, on the respondent side raised the acceptable dispute regarding the entitlement of petitioner for the amount claimed in the petition and the interest. 13. The respondent in its reply notice dated September 6, 2019 denies its liability, the dispute raised by the respondent is substantial in nature it needs further investigation. Thus, this point is answered. Point No. 3 14. The primary objection made on the respondent side is that since the application is filed without any authorisation of the applicant-company authorising any one to file the application on behalf of the company the application is liable to be dismissed. The operation creditor is a company registered under Companies Act, 1956. In the application there is no averments how the person who filed this application is competent to file the application on behalf of company. Even though he is designated as managing director would have no authority to file the application on behalf of company. There is no board resolution passed authorisin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
