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TMI Blog2019 (8) TMI 1792X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor are not the same. On perusal of the records it is found that operational creditor has wilfully or knowingly concealed the fact that the corporate debtor had already notified operational creditor about the termination of work way back on 22.02.2018, whereas, the demand notice was issued on 02.07.2018. It is found that the documents attached to the application are misleading. Mere allegation of non-payment of alleged disputed debt is no proof of insolvency. Since the very objective of the Code is re- organisation and insolvency resolution of corporate persons, no objective will be served by subjecting a solvent company to insolvency resolution process. Further, recovery is an individual effort by a creditor to recover its dues through a process that has debtor and creditor on opposite sides. When creditors recover their dues - one after another or simultaneously from the available assets of the firm, nothing may be left in due course. Thus, while recovery bleeds the corporate debtor to death, resolution endeavours to keep the corporate debtor alive - Further, IB Code provides that while admitting an application for initiation of corporate insolvency resolution process, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r realisation as per the calculation, more particularly mentioned in the computation sheet placed at page No. 7 to the application marked Annexure - A. 5. The applicant has produced on record copy of the following documents: - Sr. No. Particulars Page No. 01 Computation sheet 7 02 Bank statement for the period from 02.07.2018 till 17th August, 2018 8-13 03 Work order dated 17 th March, 2017 14-15 04 Invoices dated 05.02.2018, 05.02.2018, 31.03.2018, 30.04.2018 31.05.2018 16-20 05 Ledger account in the books of accounts of the corporate debtor 21 06 Demand Notice (form 4) dated 02.07.2018 22-3 1 07 Affidavit in support 32-33 08 Partnership deed dated 16 May, 2018 6. The respondent has fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It is alleged by the respondent that applicant mischievously deleted the aggregate amount of ₹ 24,75,000/- received on various dates i.e. 18.04.2017, 25.05.2017, 15.06.2017, 06.10.2017, 14.11.2017, 26.11.2017, 29.11.2017 and 30.11.2017 from his own ledger which was appearing in the ledger served with e-mail dated 19.01.2018. Not only copy of ledger has been forged and fabricated but contents of invoices have also been altered by the applicant. That, even in absence of any enforceable debt and default under the IB Code, applicant does not fall under the definition of operational creditor as defined in section 5(20) of IB Code. Therefore, present application is not maintainable and liable to be rejected. Finding: 9. Heard the learned lawyers appearing for both the sides and perused the documents produced by the applicant and the respondent. 10. On perusal of the record it is found that the respondent had placed work order dated 17*h March, 2017 on the operational creditor for supply of Sensor Paver and PTR on hire basis at the work site of the respondent at Jabalpur, Madhya Pradesh. In the said work order, the terms and conditions are enshrined with regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e No. 16 as Exhibit D of application reflects total amount after tax as ₹ 5,90,000.00. Further, description of the invoice No. 133 dated 05.02.2018 annexed by the applicant and the invoice No. 133 sent to Corporate Debtor are not the same. 13. Furthermore, it is found that in exhibit A at page No. 7 to the application, in case of bill No. 133 dated 05.02.2018 and the due date is shown as 06.02.201s i.e. the very next day. Similarly, in case of bill No. 157 dated 05.03.2018, due date is shown as 06.03.2018 i.e. the very next day. In case of both the invoices, interest is charged on the basis of aforesaid calculation, whereas, for the remaining 3 bills, interest is charged considering 30 days credit. For ready reference, the table produced by applicant, placed at page No. 7 to the application marked Exhibit A is reproduced here below: - Invoice No. Invoice date Invoice due date Amount Rs. Amount due Rs. Interest as on 30.06.18 Total No. of days 133 5.2.18 6.2.18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and workmen whose daily bread is dependent on the outcome of the CIRP. If there is a resolution applicant who can continue to run the corporate debtor as a going concern, every effort must be made to try and see that this is made possible . 16. Further, IB Code provides that while admitting an application for initiation of corporate insolvency resolution process, in addition to fulfilling other requirements, it must be supported by documentary proof of undisputed debt. The Supreme Court in IBA Health (P] Ltd. vs. Infozfrfve System Sdn. Bhd. (CA No. 8230 of 2010) has held that a company court should act with circumspection, care and caution must be taken and examine as to whether an attempt is made to pressurize the company to pay a debt which is substantially disputed. IB Code is not a recovery agent and it is not reasonable to permit a party to set the law in motion and thereby bring the death of a going concern, upon which the livelihood of number of employees are dependant. That apart, it may have adverse effect on the economy when for some individual grievances the appropriate forums are available, more so, when dispute requires trial to ascertain the entitlement of right t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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