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TMI Blog2021 (12) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... isputed the receipt of such amount from the Corporate Debtor. There are no reason to entertain this application - application dismissed. - I.A No/33/KOB/2021 IN TIBA/25/KOB/2019 - - - Dated:- 20-12-2021 - Hon ble Mr. Ashok Kumar Borah, Member (Judicial) And Hon ble Mr. Shyam Babu Gautam, Member (Technical) For the Applicant : Shri. Vijay V Paul, Advocate For the Respondents : Shri. Vinod P.V (for R1), Dr. K.S Ravichandran (for R2 R3) None appeared for other respondents. ORDER This IA has been filed by M/s Roxcel Trading GmbH (Operational Creditor) against the respondents seeking the following reliefs: a. Consider the matter as emergent and take up the application on an urgent basis b. Direct the 1st Respondent to admit the total claim amount of USD 16,74,303.61/- submitted by the Applicant. c. Adjudge the fraud committed by the 2nd and 3rd Respondent in the day-to-day affairs of NUI Pulp and Paper Industries private Limited in collusion with the officials of the 4th Respondent and initiate appropriate action against the said respondents including under S.68 of the Insolvency and Bankruptcy Code, 2016 for the same. d. Direct the 5t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and Twenty paisa). The Corporate Debtor has not paid the outstanding dues despite reminders. Therefore, the Operational Creditor sent a demand notice on 22.03.2019 to repay the outstanding amount within 10 days of receipt of notice. On receipt of notice, the Corporate Debtor gave a reply on 30/3/2019 informing that substantial sum were paid towards the invoice mentioned in the application and forwarded a bank statement on 01/04/2019. The Operational Creditor opposed the contentions made by the Corporate Debtor in the reply to the demand notice. 5. After hearing both the parties and perusal of the documents available in the aforesaid case record, this Tribunal admitted the aforesaid Application TIBA No. 25/KOB/2019 and moratorium was declared prohibiting in terms of Section 14(1) of the Code. After admission of the Application to initiate CIRP against the said Company, as dues were outstanding on the aforesaid disputed Invoices as well, the Applicant filed the Proof of Claim with declaration dated 27.11.2019 including the claims under the disputed Invoices with the IRP. They had submitted the following documents apart from the supporting documents filed in the TIBA 25/KOB/2019: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or relating to the property of the corporate debtor and its affairs, such officer shall be punishable with imprisonment for a term which shall not be less than three years, but which may extend to five years or with fine, it shall not be less than one lakh rupees, but may be extended to one crore rupees. It is also submitted that the 4th respondent has nothing to lose if a Forensic Audit is not conducted in the day-to-day affairs of the said Company are not brought out. It is also submitted that the fraud played by the Ex-directors i.e., respondents 2 3 who were in charge of the day-to-day affairs of the said Company is also evident from the fact that the 1st Respondent RP herself has come to the independent conclusion that a Forensic Audit of the books of accounts is necessary. It is also submitted that if the adjudicating authority is satisfied that there are circumstances suggesting that the business of the Company is being conducted with intent to defraud its creditors, member or any other person otherwise for a fraudulent or unlawful purpose or in a manner oppressive to any of its members. Counter of the Respondent No. 1: 8. In the Counter, the Respondent No. 1 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor. The Corporate Debtor has availed packing credit loan. As per the books of accounts of the Corporate Debtor the invoices raised by the Applicant is as under: - STATEMENT OF ACCOUNTS AS PER BOOKS OF NPP PURCHASES FROM ROXCEL Sl. No Invoice No Date Amount (in Rs.) Amount (USD) 1 2017INV09200 19/09/2016 27,14,040.00 40,208.00 2 2017INV12391 01/12/2016 80,05,688.40 1,16,616.00 3 2017INV01011 30/01/2017 80,65,782.72 1,17,920.80 4 2017INV02294 06/03/2017 2,70,98,950.00 4,09,349.70 5 2017INV02295 06/03/2017 78,75,046.00 1,18,958.40 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42,000.00 5 VIIJAYA BANK 30500301000430 CA 02/08/2017 1,04,16,719 1,61,741.61 6 VIIJAYA BANK 30500301000430 CA 06/10/2017 1,91,14,248 2,91,502.20 7 Advance from MD- Shameel 31/03/2018 74,54,700 1,10,000.00 8 Rebate/Discount Received 31/03/2019 2,05,51,801 3,12,613.40 Total 12,03,59,767 18,11,857.21 Balance Payable to Roxcel 91,05,993.26 1,41,847.05 11. It is stated that as per the books of accounts an amount of ₹ 91,05,993.26 equivalent to USD 1,41,847.05 is only payable to the Applicant, which is the amount reflecting in the audited financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Committee of Creditors (COC) Meeting held on 10th November 2020. Under Section 25 of the Insolvency and Bankruptcy Code, 2016, it is the duty of the RP to maintain an updated list of claims. The records shows that there has been sufficient opportunity, the details provided in Audited Financial Statements for the Financial Year and opinion of the Independent Chartered Accountant resulting in coming to a conclusion that the Applicant/Operational Creditor is entitled to get ₹ 91.05 Lakhs, but as to the opinion of the Auditor, nothing is required to be payable. The money remitted by the Applicant/Operational Creditor in 2016 and 2017 from the Bank account of the Corporate Debtor were not fully credited by the Applicant/Operational Creditor to the accounts of the Corporate Debtor. The Applicant/Operational Creditor has added some untenable stories and submitted a statement which mixes the account of different entities in different countries, which clearly shows that it is a concoction of various transactions and most of which are not pertaining to the Corporate Debtor. 14. Since the Applicant/Operational Creditor supplied inferior goods, a dispute exists which has already be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing investigation of the affairs of the Corporate Debtor. Evidently during the CIRP period for almost 460 days (approximately) even after eliminating any exclusion of period on account of COVID-19 lockdown, the maximum period specified under Section 12 of the I B Code has expired. It is also stated that there are no avoidance transactions falling under Section 43, 45, 50 and 66 of the I B Code. Certainly, from 7th November 2019 or even much prior to such date, the Corporate Debtor was in operation, only to a minimum extent. The aforesaid respondents further reiterate that the inherent powers of the Authority cannot be applied for the mere asking of the same unless it prevents an abuse of power or the same has been filed for the purpose of advancing justice. A perusal of the four invoices referred to and relied upon by the Applicant in their Application under Section 9 of I B Code, makes it clear that the total amount therein is USD 10,12,207.21/-. As against this, the three remittances made in October 2016 and January 2017 aggregate to USD 894,000/-. 16. It is further admitted by the Applicant/Operational Creditor, themselves, that the invoices referred to in Para IV(2)(l) and ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.17 1,87,55,759 2,74,000 2,74,000 31.01.17 [Pg. 301 ack. sent by NUI] 1,17,920 1,56,080 4 11.05.17 27,10,260 42,000 41,978 Amount received 41,978 5 02.08.17 1,04,16,716 1,61,741.61 1,61,741.61 Amount received 1,61,741.61 6 06.10.17 1,91,14,248 2,91,502.20 2,91,502.20 13.10.17 [Pg. 141] 2,91,502.20 7 31.03.18 74,54,700 1,10,000 1,10,000 Received from Matheel Account Bank of Austria receipt [Pg. 306] 1,10,000 18. It appears from the Chartered Accountants Report that the RP has admitted the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39 30/7/2020 40 3/8/2020 41 29/8/2020 42 31/8/2020 43 3/9/2020 44 20/9/2020 45 21/9/2020 46 20. It is also submitted that the account audit team have not commented upon the interest claim made by the applicant since the interest if any will have to be calculated on the claim finalized by the Tribunal. 21. We have heard the learned counsel for the Applicant, learned counsel for R2 R3 (the Suspended Directors) as also the Resolution Professional and had gone through the documents produced on record. The reason for rejection stated by the Resolution Professional in her reply statement is that as per the books of accounts of the Corporate Debtor an amount of ₹ 91,05,993.26/- equivalent to USD 1,41,847.05 is only payable to the Applicant, as this amount reflects in the Audited Financial Statement of the Corporate Debtor. The excess amount claimed by the Applicant has already been recei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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