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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 ..... , categorically admitting that as per the books of the accounts the balance as on 31.03.2017 stands at ₹ 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 not filing invoices would be a travesty of justice. There seems to be no pre-existing dispute as contended - the Corporate Debtor is due an amount of ₹ 4,63,19,366/- to the Operational Creditor and has defaulted in discharging the said due and hence, CIRP can be initiated against the Corporate Debtor. It is a fit case to admit and order initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor - application admitted - moratorium declared. - TCP (IB) No. 76/9/AMR/2019 in CP(IB) No. 754/HDB/2018 - - - Dated:- 24-2-2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in this case. Though the demand notice annexed to the Petition is addressed to the registered office of the Corporate Debtor, there are neither postal receipts evidencing that the Operational Creditor had sent any communication to the Corporate Debtor, nor does the alleged tracking report state that any document has been delivered. Neither any bill of lading nor any delivery orders have been issued to the Corporate Debtor. All the alleged invoices annexed to the Petition bear the same date as that of the purchase order. The debit notes annexed to the Petition do not constitute any operational debt, as they do not form part of the purchase orders and do not come within the meaning of goods or supply. Neither the invoices/bill of lading nor debit notes are served on the Corporate Debtor. The National Company Law Appellate Tribunal (NCLAT) in CA (AT) (Ins.) No. 31/2018 between Ramco Systems Vs. Spicejet Ltd., held that there is nothing on the record to suggest that the invoices dated 23.07.2014 were forwarded or received by the Respondent. The Adjudicating Authority has rightly refused to entertain application under Section 9 which requires strict proof of debt and default. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Petition under Section 9 of IBC, seeking to initiate CIRP. However, the Operational Creditor filed an authorization dated 24.01.2022 ratifying all the acts/deeds inclusive of filing TCP (IB) No. 76/9/AMR/2019 before the NCLT, Amaravathi Bench. Since, the said resolution ratifies the action of the authorized signatory in filing this Application, the Application can be considered as being filed by an authorized signatory. I am of the considered opinion that the absence of authorization as on the date of filing of the Application is a curable defect and hence, the ratification of the signing of the application by the Authorized Signatory would overcome the defect if any. 6. The Counsel for the Corporate Debtor relies on a judgment of the NCLT, Mumbai Bench in the matter of Softwareone India Private Limited Vs. Magnamious System Private Limited dated 11.03.2019, wherein, the NCLT relied on an order passed by the NCLAT in the matter of Palogix Infrastructure Private Limited Vs. ICICI Bank, wherein, it was held that since, on the date of issuance of Section 8 notice under IBC the Petitioner was not authorized for the initiation of CIRP, by implication of the judgment of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic evidence relating to invoices actually forwarded by the Applicant and there being a doubt we hold that the Adjudicating Authority had rightly refused to entertain an Application under Section 9 of IBC which requires strict proof of debt and default. But however, the said judgment is not placed before this Tribunal. So also the judgement in Neeraj Jain VS. Cloudwalker Streaming Technologies Limited and another rendered by NCLAT. However, the Counsel for the Petitioner relies on a judgment rendered by the NCLAT, New Delhi 21.01.2019 between Alloysmin Industries Vs. Raman Casting Private Limited wherein it was held that the Respondent has not disputed that the claim of the Appellant is outstanding from the Respondent as per the ledger account maintained by the Appellant. It is also not disputed that inspite of repeated requests the Corporate Debtor failed to make payment and thereby defaulted. The Corporate Debtor has not taken any plea that there is an existence of dispute and in view of the foresaid facts the NCLAT found fault with the Adjudicating Authority in rejecting the Application. In this case there is a clear admission of debt, there are exchange of letters between the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the High Court of Judicature at Bombay in Chamber Summons No J 705 of 2008 in Suit No. 3382 of 2007 between M/s. Hari Shree Enterprises Vs. M/s. Vikas Housing Limited and others also is not considered as relevant, since, the facts of this case and the said judgment differ. The observations with regard to the institution of suit are that it was not a technical matter and it has far reaching effects and it would affect the policy and events of the company and unless the power to sue is conferred upon a particular director he would have no authority to sue and such a power can be conferred upon only by the Board of Directors by passing a resolution in that regard. In this case the powers conferred are on a particular person and the deeds done by him are ratified by a subsequent resolution. The judgment of the NCLT, Mumbai Bench in CP (IB) 2161/MB/C-IV/2019 dated 06.05.2020 between Rushabh Civil Contractors Private Limited Vs. Centrio Lifespaces Limited does not find any relevance, since the facts differ. Hence, in the light of the above discussion it can be safely concluded that the Corporate Debtor is due an amount of ₹ 4,63,19,366/- to the Operational Creditor and has defaul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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