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TMI Blog2022 (3) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The facts as put forth in the Petition are that, the Corporate Debtor (CD) is a Company Limited by shares and is engaged in the business of manufacture of sugar and generation of power. The Operational Creditor (OC) is in the business of trading of imported steam coal. The Operational Creditor entered into multiple purchase orders and high seas agreements, where by the Operational Creditor supplied coal to the Corporate Debtor vessels and the supplies have been completed in the month of October, 2016. A total outstanding amount of Rs. 3,79,47,945/- is due from the Corporate Debtor. The Corporate Debtor created mortgage by deposit of title deeds in favour of Operational Creditor as a first charge, over the immovable property as security for the debt. Operational Creditor requested for payment of the debt repeatedly, but no payments were made. The Corporate Debtor thereafter, issued 5 cheques which were dishonoured. The Operational Creditor issued notice under Section 8 of IBC, 2016, on 23.10.2018 demanding the payment of the outstanding dues. Since the Corporate Debtor did not clear the outstanding dues, this Company Petition is filed seeking for initiation of CIRP. 3. The Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds to the Corporate Debtor. They never raised any dispute over the goods earlier and they are raising it now for the first time. The debit notes which are filed along with the Company Petition, constitute the Operational Debt. 5. Heard counsel for the Operational Creditor and for the Corporate Debtor. Written submissions are filed by Counsel for the Corporate Debtor. Though in the written submissions it was not mentioned anything with regard to the validity of the authorization given to the authorized signatory on the Company Petition, the Counsel for the Corporate Debtor raised it in the oral arguments. He contends that the authorization given to the authorized signatory is not in respect of initiating CIRP under Section 9 of IBC, 2016. The authorization, however, authorises the authorized signatory to sign and submit proof of claims along with such affidavits, representations and various documents electronically and/or physically and to make applications, communications, representations, modifications or alterations and may submit supplementary documents or clarifications in support of the claim and other relevant documents on behalf of the Company as and when required and act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clined to hold that the notice given under Section 8 of the IBC and the Application filed under Section 9 of the IBC are under proper authorization. Though a question was raised with regard to the service of notice on the proper address the same was not agitated further. In the rejoinder it is specifically mentioned that the notice was delivered at the registered office of the respondent and proof of service is also filed before the Tribunal. In Alloysmin Industries Vs. Raman Casting Private Limited, the NCLAT, New Delhi held that rejection of the application on a wrong presumption that demand notice is to be served on the registered office of the Corporate Debtor and not the Corporate Office is an error. It was held that if demand notice under Section 8(a) was served on the Corporate Debtor either on its registered office or its Corporate Office it should be treated to be a valid service. 8. The second aspect which the Counsel raises is with regard to the non-filing of invoices along with the notice. He relies on the judgment of National Company Law Appellate Tribunal (NCLAT) dated 08.05.2019 in CA (AT) (Ins.) No. 31/2018 between Ramco Systems Vs. Spicejet Ltd., wherein it was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in eight instalments. A reply was issued by the Corporate Debtor on 24.06.2017 intimating that the Board of Company has taken a decision not to issue Post-Dated Cheques (PDCs) for any payment and once again undertaking to clear the dues in eight instalments stating from July, 2017. A letter was issued by the Operational Creditor on 04.07.2017 rejecting the proposal of the instalments without Post-Dated Cheques (PDCs) and also rejecting the plea of waiver of interest at 12% p.a. on the delayed payment. A letter dated 27.07.2017 was issued by the Corporate Debtor, categorically admitting that as per the books of the accounts the balance as on 31.03.2017 stands at Rs. 3,79,47,945/- and they are liable to pay the company the said amount as claimed by the letter of the Operational Creditor dated 18.07.2017. This letter seems to be in response to the letter dated 18.07.2017 by the Operational Creditor calling upon the Corporate Debtor to confirm the balance due to them as on 31.03.2017. Hence, when there is a clear admission on the part of Corporate Debtor with regard to the debt due as on 31.03.2017 which is the same amount which is claimed in the CP, rejecting the application for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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