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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 ..... esent petition having been filed on 19th July, 2019, this petition is very much within time. Thus, the Operational Creditor has proved its case without any doubt - Since the petition is otherwise complete in all respects, petition is admitted - moratorium declared. - C. P (IB) No.1256 /KB/2019 - - - Dated:- 5-7-2022 - Mr. Rohit Kapoor, Member (Judicial) And Mr. Harish Chander Suri, Member (Technical) For Operational Creditor : Ms. Sutapa Roy Choudhury, Adv. Mr. Abhijit Das, Adv. Ms. Aratrika Roy, Adv. For Corporate Debtor : Mr. Radraman Bhattacharyya, Adv. Mr. Sourojit Dasgupta, Adv. 3. Ms. Amrita Panja Moulick, Adv. ORDER Per: Harish Chander Suri, Member (Technical) 1. The Court is convened by video conference today. 2. This petition under 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules,2016 has been filed by Mahavir Industrial Corporation, through its partner and Power of Attorney holder namely Mr. Hanuman Prasad Chharia , (hereinafter referred as the Operational Creditor), seeking initiation of corporate insolvency resolution process in respect of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,2014 was paid on April 14, 2015. Thereafter, the Operational Creditor by letters dated November 17, 2014 and February 11,2015 demanded payment of the monthly instalments but the Corporate Debtor failed and neglected to do so. Copies of the letters dated November 17,2014 and February 11,2015 are annexed as Annexure-F. 7. It is submitted that the Operational Creditor through its Ld. Advocate by letter dated July 21, 2015 demanded the Corporate Debtor a sum of Rs. 32 lakhs along with interest in terms of the order dated January 28,2014. The Corporate Debtor by letter dated September 28,2015 further admitted its dues and pleaded some respite as the Corporate Debtor was facing financial crisis. Copies of the letters dated July 21, 2015 and September 28,2015 is annexed as Annexure-G. 8. It is submitted that on or about August,2016 the Operational Creditor made an application being C.A. No. 634 of 2016 in C.P. 516 of 2013 praying inter alia, for appropriate directions being given for publication in the newspapers for proceeding with liquidation proceeding . The said application was heard by the Hon ble Court on November 21, 2016 wherein it was submitted before the Hon ble Court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of default in tabular form is annexed as Annexure-M. 13. The Operational Creditor further submitted that vide order dated January 28, 2014 in C.P. No. 516 of 2013 passed by Honble Justice Patherya and vide order dated November 21, 2016 in C.A. No. 634 of 2016 arising out of C.P. No. 516 passed by Hon ble Justice Soumen Sen. 14. The Operational Creditor i.e. partnership firm has filed Power of Attorney by Sri Sanjeev Chharia Smt. Kavita Chharia partners of Mahavir Industrial Corporation, the Operational Creditor appointing one of its partners Sri Hanuman Prasad Chharia as their Constituted Attorney of the partnership firm M/s Mahavir Industrial Corporation for filing the case before the High Courts ,Hon ble NCLAT and NCLT of and all courts throughout India. 15. The Operational Creditor has filed an affidavit under section 9 (3)(b) of one of its partners namely Hanuman Prasad Chharia, wherein it is submitted that during the period 2010-2011, the Corporate Debtor purchased goods from the applicant/operational creditor and also raised tax invoices. The Operational Creditor served as notice on 24.04.2013 under Section 434 of the Companies Act, 1956 on Corporate Debtor a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor sent a demand notice to the Corporate Debtor on 15.09.2018. The demand notice to the Corporate Debtor on 15.09.2018.The demand notices were duly served on the Corporate Debtor and its Directors. On 24.09.2018 by a letter, the Corporate Debtor replied to the demand notice by making false and undue statements. 22. It is submitted that after serving statutory notice dated 15.09.2018, the Corporate Debtor despite admitting its dues before the Hon ble High Court has replied to the same but has not issued any notice relating to dispute of the unpaid debt or has not filed any suit or initiated any arbitration proceeding regarding the statutory notice. It may be noted that before the statutory notice there was no suit or arbitration pending initiated by the Corporate Debtor regarding the subject demand of the Operational Creditor. 23. It is submitted that the Operational Creditor by letter dated 01.11.2018 refuted the contentions of the letter dated 24.09.2018 of the Corporate Debtor. The Corporate Debtor again by letter dated 08.12.2018 made false and frivolous allegations. 24. This application under section 9 of the Insolvency and Bankruptcy Code, 2016 was filed on July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Operational Creditor and therefore, the present application should be dismissed. 29. It is further submitted that since the Operational Creditor including the name of Mr. Hanuman Prasad Chharia has not been shown in the Register of Firms, the said application is not maintainable in law. 30. Furthermore, as will be evident from the records, the Company Petition, being C.P. No. 516 of 2013 initiated by the purported partners of the Operational Creditor is still pending before the Hon ble High Court at Calcutta. The said proceedings were initiated by the purported partners of the Operational Creditor on the basis of the same cause of action, as has been alleged in the instant proceedings. Therefore, since the issue in question has already been raised before the Hon ble High Court at Calcutta, and since the same is still pending before the said Hon ble Court, the Operational Creditor could not have raised the same issue before this Adjudicating Authority. In any event, since the proceedings were pending before the Hon ble High Court at Calcutta relating to the same disputes between the parties even prior to the issuance of the demand notice under the Insolvency and Bankruptcy C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of the Operational is hopelessly barred by the laws of limitation. Evan a bare perusal of the invoices were raised on 2011- 2012 and therefore, there cannot be any iota of doubt that the purported claim is barred by the laws of limitation. 35. It is submitted that none of the invoices raised by the Operational Creditor was ever received by the Corporate Debtor and in fact, none of the invoices bear any signature, stamp /or seal of the Corporate Debtor. 36. It is submitted that the statements made by the Corporate Debtor in its letters dated 24th September, 2018 and 8th December, 2018 are true and correct and all the allegations contrary thereto are absolutely false and incorrect. In fact, the contents of the purported demand notice dated 15th September, 2018 are incorrect and false to the knowledge of the operational creditor and/or its purported partners. 37. It is submitted that the purported working for computation of amount annexed to the said application as Annexure-M are grossly wrong and contains astronomical figures, which in any event, have not been supported by any documentary evidence. 38. It is submitted that there is no operational debt due and payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law on the basis of the self-same cause of action or disputes between the parties solely for the purpose of harassing the corporate debtor or to make unjust enrichment at the expense of the same as alleged or at all. It is submitted that the allegations of forum shopping by the corporate debtor is baseless, far-fetched, misleading, fanciful, frivolous and intended to avoid payment to the operational creditor. It is submitted that the decisions of the Hon ble Supreme Court of India as vaguely referred to by the deponent are not applicable to the instant case and as such the allegation that the Operational Creditor cannot be permitted to take recourse to the provisions of the Code are baseless. It is denied and disputed that the Operational Creditor has not abided by or has failed to comply with the necessary requirements a provided and prescribed by the Insolvency and Bankruptcy Code, 2016 read with the Insolvency and Bankruptcy ( Application to Adjudicating Authority) Rules, 2016 as alleged. It is denied and disputed that the Operational Creditor has not satisfied the requirements under the provisions of Section 9(3)(b) and 9(3)c)of the Code or that the application remains incompl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin two weeks from date and would be in a position to repay the entire amount payable under the order dated 28th January, 2014. Under such circumstances, CA No. 634 of 2016 is disposed of by extending the time to pay the entire amount payable under the order dated 28th January , 2014 within three weeks from date. In default, the petition will be advertised once in The Statesman and once in Aajkal . The advertisements should indicate that the matter will appear before court on the first available working day after the expiry of four weeks from the date of the publications being made. Publication in the official Gazette will stand dispensed with. Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Sd/- Soumen Sen, J. (Soumen Sen,J.) 46. Since the Corporate Debtor had sought orders from the Hon ble High Court for making repayment of the loan which was passed on 21st November, 2016, and the present petition having been filed on 19th July, 2019, this petition is very much within time. 47. After going through all the records, we are convinced that the Operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that where at any time during the Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of the corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix) The Operational Creditor has not proposed name of any Insolvency Resolution Professional. Therefore, as per the provisions of Section 16(3) (a) of the IBC, so, we appoint Mr. Subodh Kumar Agrawal, IRP having Reg. No. IBBI/IPA-001/IP-P00087/2017-18/10183., email ID [email protected] as Interim Resolution Professional (IRP). He shall file Form-2, and that no disciplinary proceedings are pending against him with the Board. x) Mr. Subodh Kumar Agrawal, is hereby appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan subject to production of written consent within one week from the date of receipt of this order. xi) The Interim Resolution Professional should convene a meeting of the Committee of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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