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TMI Blog2022 (2) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was allowed to be withdrawn with costs of ₹ 25,000/- which itself shows that the Tribunal was ready to hear and dispose of the matter so that a final order can be passed. Smelling the outcome, the applicant withdrew the application and filed the present application - It is pertinent to state that the applicant did not obey the directions to pay costs instead he filed the present application, which is definitely hit by res judicata. Thereafter, after an extended period, the costs were paid. Whether the case is finally decided by the Tribunal does not arise, as the intention behind the withdrawal of the application is well known to both parties. Identity of the applicant - HELD THAT:- On a verification of the records, it is seen that nowhere the applicant has put his signature, even though, while the High Sea Sale Contract was executed on 31.05.2017, the same person who, stated to have been filed this application has put his signature. Nowhere in the application, it is stated why the applicant could not sign and on whose presence the Left Thumb impression has been taken and that anybody has counter signed or attested the Left Thumb Impression of the applicant in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Crore Fifteen Lakhs Only) as full and final settlement to M/s. Kripa Cashew Exports (sister concern of M/s. Thankam Cashew Factory). These Cheques, on presentation were returned due to Insufficient Funds in the account of the Corporate Debtor. 3. The Corporate Debtor vide letter dated 07.05.2018 cancelled the above mentioned 2 cheques and issued 3 new cheques bearing Nos. 10055508 dated 09.05.2018 for an amount of ₹ 1,00,000/-, 10055509 dated 14.05.2018 for an amount of ₹ 1,00,000/-, and 10055510 dated 21.05.2018 for an amount of ₹ 93,26,058/- in the name of M/s. Thankam Cashew Factory and another cheque bearing No. 10055511 dated 18.05.2018 for an amount of ₹ 1,16,96,603/- in the name of M/s. Kripa Cashew Exports. 4. The applicant/Operational Creditor stated that M/s. Kripa Cashew Exports, the sister concern of the Operational Creditor had filed application No. CP (IB)/38/KOB/2020 before this Tribunal on 19.11.2020 for recovering the Operational debts due to it. However, it was dismissed due to the absence of privity of contract between the Operational Creditor and Kripa Cashew Exports, vide order dated 18.03.2021. Thereafter, the Operational Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplier of Raw Cashew Nuts to the Corporate Debtor. Despite the efforts, a supply shortage of 268.139 MT occurred. A dispute regarding the quantity of goods arose between the applicant/Operational Creditor and the Corporate Debtor. 8. The Corporate Debtor stated that he has filed a petition with Anchal Police Station [Kollarn Rural Police District, State of Kerala] on 17.12.2019. As the local police refused to register a First Information Report, the Corporate Debtor u/s. 154(3) of Code of Criminal Procedure 1973 approached the Superintendent of Police, Kollam Rural Police District [State of Kerala] on 15.01.2020 and a First Information Report dated 16.01.2020 bearing number 153/2019 was registered in Kottarakkara Police Station under Section 406, 420, 120-B, 468, 471 r/w. 34 of Indian Penal Code. Thereafter, the superior police officers transferred the case from the local police to the Crime Branch CID of Kerala Police and a new crime was registered by the Economic Offences Wing (E.O.W.) of Crime Branch C.I.D. as Crime No. 29/2020 under Sections 406, 420, 120-B, 468, 471 r/w. 34 of Indian Penal Code. 9. The learned counsel for the Corporate Debtor argued that the Demand No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia held in Para 28 of the Judgment that Limitation Act is applicable to Section 7 and 9 applications filed under the I B Code. 14. Regarding the identity of the applicant, the learned counsel for respondent argued that the instant application filed on 15.09.2021 has not been signed by the Petitioner and it contains only the alleged Left Thumb Impression of the applicant. The cause of action of this application, i.e., the 'High Sea Sale Contract' dated 31.05.2017 contains the signature of the applicant herein. Moreover, the Left Thumb Impression taken has not been attested or authorized by any other person in whose presence the Left Thumb Impression has been taken. 15. The Corporate Debtor also stated that they are facing the third Insolvency Petition based on the same 'cause of action'. The first application was filed by M/s. Kripa Cashew Exports as IBA/38/KOB/2020 against the Corporate Debtor and the same was dismissed on 18.03.2021. M/s. Kripa Cashews was then represented by its sole proprietor Mr. Jackson J. Mr. Jackson J., subsequent to the dismissal of aforementioned IBA/38/KOB/2020, filed another IBC Petition before this Tribunal as CP (IB)/03/KOB/202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Insolvency and Bankruptcy Code as a money recovery tool. In this regard, the learned counsel referred to the judgment of the Hon'ble Supreme Court of India in Transmission Corporation of Andhra Pradesh Limited v. Equipment Conductors and Cables Limited , wherein it is stated that: In a recent judgment of this Court in Mobilox Innovations Private Limited vs. Kirusa Software Private Limited (2018) 1 SCC 353, this Court has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked. We would like to reproduce the following discussion from the said judgment: 33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e. on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or reject it. If the application made under subsection (2) is incomplete, the adjudicating authority, under the proviso to sub-section (5), may give a notice to the applicant to rectify defects within 7 days of the receipt of the notice from the adjudicating authority to make the application complete. Once this is done, and the adjudicating authority finds that either there is no repayment of the unpaid operational debt after the invoice [Section 9(5)(i)(b)] or the invoice or notice of payment to the corporate debtor has been delivered by the operational creditor [Section 9(5)(i)(c)], or that no notice of dispute has been received by the operational creditor from the corporate debtor or that there is no record of such dispute in the information utility [Section 9(5)(i)(d)], or that there is no disciplinary proceeding pending against any resolution professional proposed by the operational creditor [Section 9(5)(i)(e)], it shall admit the application within 14 days of the receipt of the application, after which the corporate insolvency resolution process gets triggered. On the other hand, the adjudicating authority shall, within 14 days of the receipt of an application by the operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount of ₹ 1,16,96,603/- was paid to the Corporate Debtor out of the funds of M/s. Kripa Cashew Exports. M/s. Kripa Cashew Exports thereby initiated the CIRP proceedings before this Tribunal by issuing Demand Notice on 30.09.2020. The Corporate Debtor has filed a reply dated 10.10.2020 to the demand notice. In that reply notice the Corporate Debtor has not mentioned about the pendency of any suit or proceedings against the Applicant. The Application under Section 9 was filed by M/s. Kripa Cashew Exports on 26.11.2020. In the Original Suit as mentioned above, the Corporate Debtor specifically stated that the cause of action of the said suit arose from 10.10.2020, on which date the plaintiff in the said suit received communication from the 1st defendant presumably under the IBC. 21. The learned counsel, therefore, argued that it is evident that the suit is initiated after the Demand Notice in Form 3 and after the filing of Section 9 application under the Code before this Tribunal and the same is an abuse of process of this Tribunal. Findings: 22. We have heard the learned counsel for both the parties and also have gone through the pleadings on record. We may first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als International Trade and Allied Products Private Limited Filed on 16.02.2021 15.09.2021 Filed by M/s Thankam Cashew Factory, represented by its proprietory Shri. Jose Samuel through Power of Attorney holder Shri. Jackson J. Shri. Jose Samuel Claim Amount ₹ 2,93,26,058/- ₹ 2,93,26,058/- Debt Amount ₹ 4,00,22,035/- ₹ 4,03,23,329/- Cause of Action High Sea Sale Contract dated 31.05.2017 High Sea Sale Contract dated 31.05.2017 Result In view of the order dated 29.07.2021, CP(IB)/03/KOB/2021 is allowed to be withdrawn. Present application. 27. From the above table, it is clear that the prayers in the first application and second Application for initiation of CIRP were identical. However, the Interlocutory Application- IA(IBC)/110/KOB/2021 was filed by M/s. Thankam Cashew Factory for withdrawing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances, whether the case is finally decided by the Tribunal does not arise, as the intention behind the withdrawal of the application is well known to both parties. 32. Now, we may take up the second issue pointed out by the learned counsel for the Corporate Debtor, regarding the identity of the applicant. On a verification of the records, it is seen that nowhere the applicant has put his signature, even though, while the High Sea Sale Contract was executed on 31.05.2017, the same person who, stated to have been filed this application has put his signature. Nowhere in the application, it is stated why the applicant could not sign and on whose presence the Left Thumb impression has been taken and that anybody has counter signed or attested the Left Thumb Impression of the applicant in the application. We therefore relied on Rule 128 of NCLT Rules, 2016 for further clarification. It is stated that 128. Affidavits of illiterate, visually challenged persons.- Where an affidavit is sworn or affirmed by any person who appears to be illiterate, visually challenged or unacquainted with the language in which the affidavit is written, the attester shall certify that the affidavi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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