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TMI Blog2022 (1) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor which clearly demonstrates that the corporate debtor has not denied the details of debt filed by the operational creditor within the information utility which also further weakens the case of the corporate debtor. The operational creditor has a strong case and the corporate debtor has to be admitted to CIRP as prayed for by the operational creditor. Accordingly, the instant application filed under section 9 of the I and B Code, 2016 is hereby admitted - Application admitted - moratorium declared. - C. P. (IB) No. 525/9/HDB/2019 - - - Dated:- 16-11-2021 - Dr. Venkata Ramakrishna Badrinath Nandula (Judicial Member) And Veera Brahma Rao Arekapudi (Technical Member) For the Petitioner : Sharad Sanghi, Ms. A. Sandhya Rani and G. Jagadish For the Respondent : Sourabh Agarwal ORDER 1. The instant petition is filed by M/s. Binjusaria Ispat P. Ltd., alleging that M/s. Abhirama Steels Ltd./corporate debtor had defaulted an amount of ₹ 1,77,15,636 (rupees one crore seventy seven lakhs fifteen thousand six hundred and thirty six only) along with interest at 18 per cent. for the period from April 4, 2016 to March 4, 2019. The list of invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olume 1. (v) It is averred that the operational creditor has filed C. P. No. 186 of 2016 before the hon'ble High Court of Telangana, Andhra Pradesh under sections 433, 434 and 439 of the Companies Act, 1956 on June 3, 2016 and by the time the notices in the said CP not being served on the corporate debtor, the present Tribunal being formed and according to rule 5 of the Notification, the present case has been transferred to this hon'ble Tribunal as per the orders dated June 7, 2018. (vi) It is averred that as a counter blast to the proceedings filed under section 138 of the Negotiable Instruments Act, 1881 and the winding up proceedings initiated before the hon'ble High Court, the corporate debtor filed a civil suit vide O. S. No. 487 of 2016 on the file of Xth Additional Chief Judge, City Civil Court at Hyderabad on false grounds for recovery of an amount of ₹ 57,50,785 towards damages and the same is pending. (vii) It is averred that the present operational creditor has also filed a suit for recovery of an amount of ₹ 2,28,44,310 against the corporate debtor on August 4, 2017 vide C. O. S. No. 245 of 2017 before the XXIV Additional Chief Judge, Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity material, the operational creditor never complied with the same and now demanding payment for inferior quality material is highly deplorable. (vi) It is also false to say that the corporate debtor agreed to pay 18 per cent. interest to the operational creditor on the invoice amount if the corporate debtor failed to make the payment on its due date. (vii) It is denied that the allegation of the operational creditor that the corporate debtor has issued cheques to the operational creditor. In fact, blank cheques were given to the operational creditor as a security at the time of supply of material which was mischievously presented by the operational creditor and on dishonour of the same, the operational creditor filed C. C. No. 88 of 2016 before the hon'ble Vth Special Magistrate, Hyderabad and the matter is still pending for adjudication. (viii) It is averred that on representation made to the operational creditor, the operational creditor failed to accept the fault in supplying the defective material due to which the corporate debtor filed a civil suit vide O. S. No. 487 of 2016 for damages against the operational creditor and the same is pending on the file of Addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the counter blast to the winding up petition the corporate debtor has filed the suit O. S. No. 487 of 2016 on the file of Xth Additional Chief Judge, City Civil Court, Hyderabad. (xiii) It is denied that the civil suit vide O. S. No. 487 of 2016 is based on false and baseless grounds. In fact, the matter is sub-judice before the Xth Additional Chief Judge, City Civil Court at Hyderabad, as such, it is not proper on the part of the operational creditor to say that the said suit is false and baseless pending disposal of the suit and the same shall amounts to contempt of court. (xiv) It is totally false to say that the suit O. S. No. 487 of 2016 is filed only to create dispute before this hon'ble court. The operational creditor filed a suit against the corporate debtor under commercial court vide C. O. S. No. 245 of 2017 before the XXIVth Additional Chief Judge, City Civil Court at Hyderabad, for a sum of ₹ 2,28,44,310 which came to the know ledge of the corporate debtor only upon the receipt of the present application. It is averred that at one time the operational creditor has filed a winding up petition against the corporate debtor stating no dispute with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of poor quality standard and also dispatched spurious and poor standard material which have been brought to the notice of the operational creditor from time to time in writing and demanding the rectification and the operational creditor promised to take back the said inferior quality material. (iv) It is averred that O. S. No. 487 of 2016 filed by the corporate debtor before the Xth Additional Chief Judge, City Civil Court, Hyderabad has already been dismissed. It is denied that the said suit has been filed before filing of the present company petition by the corporate debtor. (v) It is denied that the operational creditor is due and liable to pay any amount to the corporate debtor and that the said dispute is pending before the Xth Additional Chief Judge, City Civil Court, Hyderabad. (vi) It is averred that the dispute which has been put up by the corporate debtor before this hon'ble court so also in O. S. No. 487 of 2016 is only a sham, make believe, spurious, moon shine and only to overcome the rigours of the Insolvency and Bankruptcy Code, 2016. (vii) It is false and baseless to state that the pendency of the C. O. S. No. 245 of 2017 before the XXIVth Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and the same is also pending before the Civil Court at Hyderabad. 7. The averments of the additional counter dated April 16, 2021 filed by the respondent/corporate debtor in brief are described hereunder : (i) It is averred that notice under form 3, dated March 13, 2019 and reply dated March 22, 2019 by the corporate debtor, which were filed at the stage of arguments by the operational creditor. These documents cannot be relied upon as the said documents are never pleaded in the pleadings of the operational creditor as such they cannot be looked into. (ii) It is averred that the present company petition was earlier filed before the hon'ble High Court for the State of Telangana at Hyderabad vide C. P. No. 186 of 2016. However, after notification dated December 7, 2016 the said company petition was transferred from the hon'ble High Court to before this hon'ble Tribunal as per order dated June 7, 2018 as such the present notice dated March 13, 2019 being issued by him under earlier Companies Act, 1956, giving a statutory notice period of 21 days. Therefore, this notice does not give any stand to the operational creditor. It is also averred that the operational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he corporate debtor has entered into a memorandum of understanding wherein the corporate debtor has agreed to pay the due amount on or before February 29, 2016. It is also brought to our notice by counsel for operational creditor that the corporate debtor has also issued cheques towards payment of amount due with a promise to undertake to honour the said cheques as and when presented. However, the corporate debtor has not honoured his commitment and the cheques when presented were dishonoured for want of sufficient funds. 9. The operational creditor has also submitted the tax invoices to show the proof of supply of goods and also detailed ledger account maintained by him. As per the memorandum of understanding entered into between the parties, the corporate debtor have admitted the due and default and agreed to pay an amount of ₹ 1,77,55,636 to the operational creditor. It is the case of the operational creditor that for the first time after receipt of demand notice in form 3, the corporate debtor has taken the defence that the quality of goods supplied by the operational creditor were not up to the standard and of bad quality. The operational creditor also contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd brought the fact to the operational creditor's notice and knowledge several times from time to time and demanded rectification. However, the operational creditor has never rectified the same. As regards to the contention of the operational creditor that the corporate debtor has issued cheques in lieu of the debt due is denied by the corporate debtor and further contended that the blank cheques were given as a security at the time of supply of material which was mischievously presented by the operational creditor. Further, on dishonour of cheques, the operational creditor filed C. C. No. 88 of 2016 before the hon'ble Vth Special Magistrate, Hyderabad. He also informed to the Tribunal that the corporate debtor is contesting this case and the matter is still pending for consideration. 14. The corporate debtor further contended that he filed a civil suit vide O. S. No. 487 of 2016 for damages against the operational creditor for supply of the defective material and the same is pending before the Xth Additional Chief Judge, City Civil Court at Hyderabad. Counsel for operational creditor informed to the Tribunal that the case was dismissed for default of non-prosecution. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application filed under section 9 of the I and B Code, 2016 is hereby admitted. 18. The operational creditor has not named anyone as interim resolution professional (IRP) and has requested this Adjudicating Authority to appoint one for the insolvency resolution professionals as IRP. The Insolvency and Bankruptcy Board of India (IBBI) has recommended a panel of insolvency professionals for appointment as insolvency resolution professional for the period from July 1, 2021 to December 31, 2021 in compliance with section 16(3)(a) of the Code in order to avoid delay. Accordingly, this Tribunal appoints Mr. Maruti Venkata Subba Rao Poluri having Registration No. IBBI/IPA-002/IPN00924/2019-2020/13001, e-mail : [email protected] as interim resolution professional. As per the IBBI website, his AFA is valid up to June 7, 2022. The aforesaid IRP has no disciplinary proceedings pending against him. He shall file his written communication and all relevant papers immediately before the Registrar of this Adjudicating Authority but not later than three days. 19. Hence, the Adjudicating Authority admits this petition under section 9 of the IBC, 2016, declaring moratorium for the purposes r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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