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TMI Blog2022 (7) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... Equipment Pvt. Ltd., CIN: 51109WB2000PTC091319 having its registered office P-16, Kasba Industrial Estate, Phase-I, Kolkata-700107, (hereinafter referred as the Corporate Debtor). 3. It is submitted in the petition that the Operational Creditor is an unregistered partnership firm engaged in the business of manufacturing and supplying of Electrical goods and allied products. During the period 2010 to 2011, time to time the Corporate Debtor purchased diverse electrical and mechanical goods for which invoices were also raised. Copy of the said invoices is annexed as Annexure-C Colly. 4. It is submitted that a sum of Rs.41,43,217.12 fell due from the Corporate Debtor and the Operational Creditor served a notice under Section 434 of the Companies Act, 1956 dated April 24, 2013. Since the Corporate Debtor failed to pay its debt of Rs.41,43,217.12 on July 23, 2013, the Operational Creditor instituted a winding up proceeding before the Hon'ble High Court at Calcutta, against the Corporate Debtor being C.P. No. 516/2013. By an order dated January 28, 2014 the Hon'ble Court admitted the winding up petition upon consent of the parties for a total sum of Rs.42 lakhs and the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the Corporate Debtor that the company is likely to receive a sum of Rs.13 Crore within two weeks from date and would be in a position to repay the entire amount payable under the order dated January 28,2014. The Hon'ble Justice Soumen Sen after hearing the submissions /admission of the Ld. Advocate on behalf of the Corporate Debtor was pleased to dispose of the said application by extending the time to pay the entire amount payable under the order dated January 28, 2014 within three weeks from date. In default the said petition will be advertised once in 'The Stateman' and once in 'Aajkal'. Copy of the said order dated November 21,2016 is annexed as Annexure-H. 9. It is submitted that despite order of the Hon'ble High Court at Calcutta, the Corporate Debtor failed and neglected to pay its admitted dues. By letter dated December 7,2016, the Corporate Debtor admitted its dues and further requested the Operational Creditor to keep in abeyance the execution of the order dated November 21, 2016 inasmuch as they had all bonafide intention to pay their dues but were suffering from financial crisis. Copy of the said letter dated December 7,2016 is annexed as Annexure-I. 10. Since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that on 23.07.2013, the winding up proceedings were instituted before the Hon'ble High Court at Calcutta as the Corporate Debtor failed to pay Rs.41,43,217/-. By an order dated 28.01.2014, the Hon'ble Court recorded that the Corporate Debtor has agreed to make payment inclusive of interest aggregating to Rs.42,00,000/- and the Hon'ble Court directed the Corporate Debtor to pay Rs.1,00,000/- per month for 42 succeeding months and in default of payment of any two instalments, the Operational Creditor will be entitled to interest as claimed in the winding up petition. Pursuant to the order of the Hon'ble High Court at Calcutta last instalment was paid on 04.04.2015 ( Instalment for November, 2014). 17. It is submitted that the Operational Creditor by letters/notices of diverse dates demanded the remaining monthly insalments but the Corporate Debtor failed and neglected to pay the same. The Operational Creditor by its Ld. Advocates letter demanded a sum of Rs.32 Lakhs along with interest from Corporate Debtor in terms of the order of the Hon'ble High Court at Calcutta. 18. The Corporate Debtor admitted its liability but expressed its inability to pay the outstanding due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime to time this application was heard and parties have filed their respective affidavits. 25. It is submitted that by an order dated 10.09.2021, the company petition being CP No. 516 of 2013 was transferred by the Hon'ble High Court at Calcutta to this Adjudicating Authority and the same is registered as TP/3(KB)/2022. 26. The petition being TP/3(KB) 2022 appeared on 08.03.2022 before this Adjudicating Authority and the said matter was directed to be listed on 23.03.2022 along with C.P.(IB) No. 1256/KB/2019. By an order dated 23.03.2022, This Adjudicating Authority after hearing all the parties inter alia,directed the Operational Creditor to file affidavits under Section 9(3)(b) and 9(3)(c) of the Insolvency and Bankruptcy Code, 2016. 27. The Operational Creditor has also filed an affidavit under Section 9(3)(c)of the Code through one of its partner Hanuman Prasad Chharia, where in it is stated that despite having admitted that Rs.32 Lakhs was due and payable to the Operational Creditor before the Hon'ble High Court at Calcutta in C.A. No.634 of 2016 arising out of C.P. 516 of 2013 at present registered as TP/3(KB) 2022 as recorded in the order dated 08/03/2022, after having se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Insolvency and Bankruptcy Code, 2016. 31. It is submitted that in addition thereto, the Operational Creditors have resorted to Forum shopping, by initiating different proceedings before different Courts of Law on the basis of the same cause of action and/or disputes between the parties, solely for the purpose of harassing the Corporate Debtor and making unjust enrichment at the expense of the same. The Hon'ble Supreme Court of India, in several of its decisions, has deprecated such practice of forum shopping and has held that such proceedings should be nipped in the bud. In view of the same, the Operational Creditor cannot be permitted to take recourse to the provisions of the Insolvency and Bankruptcy Code,2016. 32. Ld.Counsel for the Corporate Debtor submitted that the Operational Creditor has not abided by and has failed to comply with the necessary requirements as provided and prescribed in the Insolvency and Bankruptcy Code, 2016 read with Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Even otherwise, the instant application is barred by the provisions of the Code, 2016. 33. It is submitted that the said application does not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble under section 9 of the Code and that no Operational debt has been proved to have been due by the Corporate Debtor. 39. It is submitted that the instant purported application is a gross abuse of the process of law. Therefore, since the instant application is incomplete and in any event, misconceived, the same fail and deserves to be rejected by this Adjudicating Authority. 40. In the Rejoinder affidavit filed by the Operational Creditor, it is submitted that the deponent Hanuman Prasad Chharia is one of the authorised partners of Mahavir Industrial Corporation. It is submitted that all the allegations contained in the reply affidavit are denied. It is denied that the application is not maintainable or that the Operational Creditor, who is represented through its partner cannot enforce its purported rights under the Code or that the application is barred by time. It is denied that the Company petition C.P.No. 516 of 2013 is pending before the Hon'ble High Court at Calcutta as alleged or at all. It is categorically denied that the proceedings were initiated before the Hon'ble High Court on the basis of the same cause of action as has been alleged in the instant proceedings and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor has further denied all the allegations made in further paragraphs of the reply affidavit and the Operational Creditor has reiterated and reaffirmed corresponding paragraphs of the petition. 42. It is denied by the Operational Creditor that no operational debt is due or payable by the Corporate Debtor to the Operational Creditor or that the proceedings are not maintainable under section 9 of the Code. 43. In the present case, it is clear from the aforesaid facts that the Corporate Debtor had admitted its liability and had agreed to pay Rs.1,00,000/- per month for 42 months in the proceeding filed before the Hon'ble High Court of Calcutta. The Corporate Debtor, however failed and committed default in payment of the instalments. 44. Even in the reply to the notice under section 8 of Code served on the Corporate Debtor by the Operational Creditor, the Corporate Debtor could not give any notice relating to any dispute as regards the unpaid debt or any suit having been filed or Arbitration Proceedings regarding the said claim of the Operational Creditor. 45. Even, though the Corporate Debtor has taken the ground that the claim of the Operational Creditor is barred by time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S i) The application filed by the Operational Creditor under Section 9 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, is hereby admitted. ii) We hereby declare a moratorium and public announcement in accordance with Sections 13 and 15 of the I & B Code, 2016. iii) Moratorium is declared for the purposes referred to in Section 14 of the Insolvency & Bankruptcy Code, 2016. The I.R.P. shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency & Bankruptcy Code, 2016 shall be made immediately. iv) Moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following: a) The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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