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TMI Blog2022 (6) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove that Shankar Singh is running all these companies, namely, Abhilasha Exports, Isha foods and Vashishtha Grinding, whereas the Operational Creditor has affirmed through an affidavit that the proprietor of Isha foods is Mr. Binod Kumar Chaudhary - Further, even if the wrongful mention of the addressee is taken to be a bona fide mistake, there is nothing on record to prove that the spurious goods being the blackish turmeric powder and other spurious powdered spices belonged to the batch of whole spices provided by Isha Food Products. The mere allegation of collusion being raised cannot, by itself, be sufficient to prevent the admission of the present petition. Otherwise, in every case, the Corporate Debtor can come up with a defence that the acknowledgment given was unauthorized, thus escaping the clutches of the law. This proposition, therefore, cannot be upheld since it will have unlimited consequences. This Adjudicating Authority is satisfied that a debt is due and payable by the Corporate Debtor towards the Operational Creditor and the Corporate Debtor has defaulted in the same. The petition has been filed in the requisite form and affidavit in compliance under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kh sixty thousand nine hundred thirty only) were dishonoured on presentation by the banker of the corporate debtor. The cheques issued for the remaining amount of Rs. 3,20,400/- (Rupees three lakh twenty thousand four hundred only) were not deposited. 6. The Corporate Debtor vide letter dated 04 August 2018 had acknowledged its liability and had assured the Operational Creditor to make the payment through RTGS. After issuance of the said letter by the Corporate Debtor for payment through RTGS, the Corporate Debtor by its letter dated 20 August 2018 made untrue allegations, being contrary to records. 7. The Operational Creditor through its advocate issued a notice dated 13th September 2018 under section 8 of the Code calling upon the Corporate Debtor to pay the said sum of Rs. 27,68,141/- along with interest @ 24% being within a period of ten days. The Corporate Debtor had refused to accept the notice and the envelope containing the said notice was returned with endorsement refused. 8. Therefore, a principal sum of Rs. 27,68,141/- along with interest @ 24 % is due and payable by the corporate debtor in respect of the said goods, interest thereon. In spite of repeated reques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e processed goods to the Corporate Debtor. The Corporate Debtor never received any goods directly from the Operational Creditor and it was always received from Vashistha Spices Grinding Mill after the goods were processed. Only upon receipt of the said goods and upon satisfaction of the quality thereof, the Corporate Debtor was required to pay the Operational Creditor. 15. The invoices in respect of supplies made to the Corporate Debtor clearly indicated that the delivery address was that of Vashistha Spices Grinding Mill at No. 15, Kirtibash Mukherjee Road, Kolkata-700067. Such invoices were raised by the Operational Creditor giving the particulars of the goods supplied and delivered to Vashistha Spices Grinding Mill. 16. Out of the said six purported invoices supporting the instant petition, the Corporate Debtor had received goods covered by only two of the invoices dated 02 May 2018 and 23 June, 2018 for the sums of Rs. 4,70,400/- (Rupees four lakh seventy thousand four hundred only) and Rs. 2,85,705/- (Rupees two lakh eighty-five thousand seven hundred and five only). In so far as the invoice dated 02 May 2018 is concerned, the Operational Creditor has already received th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate debtor when there is none. 21. By a letter dated 04 August 2018, the Corporate Debtor has already informed both the Operational Creditor as well as Vashistha Spices Grinding Mill about the ulterior motive of the Operational Creditor Such letter dated 04 August 2018 was followed up by another letter dated 28 August 2018 clearly stating that in spite of receipt of advance payments, goods have not been supplied to the Corporate Debtor. The inferior quality of goods that were being supplied to the Corporate Debtor were also brought to the notice of the Operational Creditor as well as Vashistha Spices Grinding Mill. The said letter addressed to the Operational Creditor was returned by the postal authorities with endorsement unclaimed. 22. The particulars contained in the ledger referred to by the Operational Creditor are not wholly correct inasmuch as the Operational Creditor has failed to disclose receipt of sums of Rs. 1,00,000/- (Rupees one lakh only) and Rs. 1,50,000/- (Rupees one lakh fifty thousand only) received on 04 November 2017 and 12 December 2017 respectively. In this connection, the Corporate Debtor relies upon a statement of account maintained with Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Creditor in respect of the Bills except the Bill dated 23 June 2018. The Bill dated 23 June 2018 is admitted by the Corporate Debtor. The goods supplied to Vashistha Spices Grinding Mill were at the instance of Corporate Debtor. 27. The Operational creditor does not have any business transaction with Vashistha. The orders were given verbally, and the delivery instructions were also given verbally. The delivery address was not always indicated in the invoices, at times it was mentioned in the invoices and at times was not. However, the receipt of goods has never been denied by the Corporate Debtor as the Corporate Debtor has issued post-dated cheques in respect of all invoices, except invoice dated 23 June 2018. 28. The Corporate Debtor does not dispute receipt of invoice dated 23 June 2018 and in respect of other disputes, the Corporate Debtor has issued post-dated cheques as such there is no question of any dispute regarding receipt of invoices and delivery of goods. 29. A sum of Rs. 27,68,141/- is due and payable on account of six invoices and balance part payment of Rs. 75,000/- in respect of Invoice No. IFP/17-18/866 dated 23 February 2018. The Corporate Debtor has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FP/18-19/027 dated 5 April 2018 for a sum of Rs. 4,70,400/-, the Corporate Debtor gave seven cheques amounting to Rs. 4,70,400/- all of which were dishonoured upon presentation. In respect of Invoice No. IFP/18-19/180 dated 02 May 2018 amounting to Rs. 4,70,400/- the Corporate Debtor gave ten cheques amounting to Rs. 4,70,400/-. Three of the said cheques were dishonoured upon presentation. 38. The remaining seven cheques were not presented as the Corporate Debtor by its letter dated 04 August 2018 informed that they would make the payment through RTGS. In respect of Invoice No. IFP/18-19/503 dated 23 June 2018 amounting to Rs. 2,85,705/- the Corporate Debtor did not give any cheques. 39. In respect of Invoice No. IFP/18-19/503 dated 23 June 2018 amounting to Rs. 2,85,705/- the Corporate Debtor did not give any cheques. It would be evident from the cheques issued by the Corporate Debtor that all the cheques were not in round figures and the same would be evident from the Cheque No. 891555 dated 21 May 2018 for a sum of Rs. 71250/-, Cheque No. 891595 dated 27 May 2018 for a sum of Rs. 23880/-, Cheque No. 891671 dated 10 June 2018 for a sum of Rs. 20,400/-, Cheque No. 891679 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or can make payment by RTGS. 44. The Operational Creditor had received the letter dated 20 August 2018. The contents of the letter dated 28 August 2018 being Annexure-13-1 to the reply is same as the letter dated 20 August 2018. The said letter is in contradiction with the letter dated 04 August 2018. The contents of the letter dated 04 August 2018 and 20 August 2018 are untrue and incorrect. The Operational Creditor has received the letter dated 20 August 2018 and it appears from page 14 that the letter was sent on 20 August 2018. As the Operational Creditor has received the letter dated 20 August 2018 the question of the same being unclaimed does not and cannot arise. Further, the Invoices which are the subject matter of the petition are of 2018 as such the payment which have been made in November 2017 and December 2017 are of no relevance. Affidavit-in-Opposition to the Supplementary Affidavit of the Operational Creditor 45. The Corporate Debtor vide Affidavit-in-Opposition to the Supplementary Affidavit of the Operational Creditor dated 7th March 2022, has mentioned that Mr. Sunil Jain, then Chief Accountant of the Corporate Debtor had been acting in collusion with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us goods being the blackish turmeric powder and other spurious powdered spices belonged to the batch of whole spices provided by Isha Food Products. 50. Further, in letter dated 04 August 2018, the Corporate Debtor has also expressed their intention to pay the dues of the Operational Creditor by RTGS, thereby acknowledging its debt to the Operational Creditor. 51. It is to be noted here that the Corporate Debtor has also claimed that Mr. Sunil Jain, then Chief Accountant of the Corporate Debtor had been acting in collusion with the Operational Creditor, Mr. Vikash Kumar Chowdhury and Mr. Shankar Singh, who according to the Corporate Debtor had initially misrepresented himself as proprietor of Isha Food Products. It is also claimed that Mr. Sunil Jain had also been illegally manipulating and falsifying the records of the Corporate Debtor in order to facilitate the said fraudulent acts. The Corporate Debtor, however, has failed to bring on record any proof to establish his claim. 52. The mere allegation of collusion being raised cannot, by itself, be sufficient to prevent the admission of the present petition. Otherwise, in every case, the Corporate Debtor can come up with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tcy Board of India (IBBI). The IRP shall carry out her functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the Code. (f) During the CIRP period, the management of the Corporate Debtor shall vest in the IRP or the RP, as the case may be, in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within one week from the date of receipt of this Order, in default of which coercive steps will follow. (g) The IRP/RP shall submit to this Adjudicating Authority periodical reports with regard to the progress of the CIRP in respect of the Corporate Debtor. (h) The Operational Creditor shall deposit a sum of Rs. 2,00,000/- (Rupees two lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). (i) In terms of section 7(a) of the Code, Court Officer of this Court is hereby directed to communicate this Order to the Operational Creditor, the Corporate Debtor and the IRP by Speed Post, email and WhatsApp immediat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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