9911796707
TMI Blog2022 (5) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... eby the Operational Creditor had walked out in outstanding balance payable by the Corporate Debtor at ₹ 5,82,516/- as on 13.07.2016. Further it was strongly argued on behalf of the Corporate Debtor that the payment had been made to all the three entities against the supply made by the Operational Creditor and based upon that the Corporate Debtor had paid excess of ₹ 1,05,767/-.To substantiate this claim, reliance has been placed by the Corporate Debtor on ledger accounts of the Operational Creditor maintained by the Corporate Debtor in its books of account. No proof of payment or transfer of amounts so claimed has been attached in the reply or thereafter, Thus, such claim remains unsubstantiated for want of evidence to that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (J) And Virendra Kumar Gupta, Member (T) For the Appellant : Vishal Malhotra, CA For the Respondents : Srijan Mehrotra, Advocate ORDER Virendra Kumar Gupta, Member (T) 1. The present application has been filed by Operational Creditor, namely M/s. Bhavesh Texo Fab Private Limited under Section 9 of Insolvency Bankruptcy Code, 2016. (Hereinafter referred to as IBC, 2016 ) for initiation of Corporate Insolvency Resolution Process (hereinafter referred to as CIRP ) against the Corporate Debtor, namely M/s. Shivalik cotsyn Private Limited. The amount of debt claimed to be in default is Rs. 65,36,488/-, and the date the default as on 09.09.2016. 2. In support of its claim, the Operational Creditor has placed on record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the management of the three entities i.e. Bhavesh Texo Fab Private Limited (herein referred to as the Operational Creditor ), M/s. Shiv Shakti International and M/s. Harsh Trading Company are not related to each other and the contract for the supply of goods was between the operational Creditor and Corporate debtor and the other two entities was never party to that contract. 5. It is also submitted that there was no contract of mutual set off of debit and credit nor any privity of contract was entered into between the three entities and the Corporate Debtor and it is also submitted that the audited balance sheet of the Corporate Debtor for the financial year 31.03.2017 also reflects the amount due to the Operational Cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Creditor apart from relying on the pleas made earlier submitted that the Operational Creditor is having a distinct legal entity and there is no such agreement between the Corporate Debtor and the three entities including the Operational Creditor for mutual set off of the amount due to the Operational Creditor. Findings Conclusion 9. We have gone through the submission made by both party and pursued the records. 10. It is noted that on behalf of the Corporate Debtor strong plea had been made that the Operational Creditor raises invoices in one entity. However, as per the understanding the payments payable to the Operational Creditor had been paid into those three entities against the supply made by one entity. In this regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n outstanding dues which also goes to show the Corporate Debtor liable to make payment of some liability to Operational Creditor. 14. It is seen from the records that notice of default under Section 8 has been delivered and affidavit under Section 9(3)(b) of IBC has also been filed and debt fell due on 08.09.2017 and this application has been filed on 12.10.2018 so the application is found well within the limitation. 15. It is noted that the application filed U/s. 9 is complete and complies with the requirements of the relevant provisions of IBC, 2016 read with Rules and Regulations made thereunder. The outstanding amount is more than the threshold limit of Rs. 1,00,000/- (Rupees One Lakh only). There does not exist any dispute within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in any court of law, tribunal, arbitration panel or other authority; b) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; c) Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor. vi) The supply of essential goods or services rendered to the Corporate Debtor as may be specified ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
