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TMI Blog2022 (7) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... f the exact amount of invoice as a security cheque. The invoice is dated 21st May, 2019 and the cheque is dated 20th May, 2019. If as per the Operational Creditor, the new gold ornaments weighting 262.120 Gram as per work order for Rs.8,93,911/- were supplied to the Corporate Debtor on 21st May, 2019 and the Corporate Debtor received the supplies after verification as good without any objection regrading the product quality in the supply of materials. It is not possible that the Corporate Debtor would issue a cheque of exactly the same Invoice amount without receiving the goods or the Invoice. It cannot be believed that it was a security cheque. The dispute has been raised by the Corporate Debtor only after receipt of the Demand Notice. The Operational Creditor has been able to prove its case and the plea raised by the Corporate Debtor is very week defence, which would not nullify the claim of the Operational Creditor. This petition deserves to be admitted and the defence raised by the Corporate Debtor is, therefore, rejected - application admitted - moratorium declared. - C. P (IB) No.728/KB/2020 - - - Dated:- 5-7-2022 - Mr. Rohit Kapoor, Member (Judicial) And Mr. Haris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through telephonic discussion and further time to time by e-mail dated 27/05/2019 and 03/06/2019 and about the balance outstanding amount and on several occasions demanded the amount from Corporate Debtor but the Corporate Debtor refused to pay the amount stating the reason that they are awaiting the payment from some third party transaction . Ledger Statement, Bank Statement and Emails are annexed as Annexure- G,H,I respectively. It is submitted that the Corporate Debtor has no intention to pay the debt and therefore, it is necessary that insolvency proceedings be initiated against the Corporate Debtor. 6. It is further submitted that the Demand Notice/Invoice in Form-3 are served through speed post vide Consignment Number RW354691523IN on dated 22/07/2019, which was duly received by Corporate Debtor on 23/07/2019, which was duly received by Corporate Debtor on 23/07/2019. A copy of the Demand Notice in Form-3 is annexed as Annexure-J and copy of the Postal Receipt is annexed as Annexure-K. 7. In response to the Demand Notice dated 22/07/2019, the Corporate Debtor sent a reply through Advocate vide letter dated 27/07/2019, in which certain baseless and unsustainable allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or making it a scapegoat, in order to recover its losses. 13. It is submitted that the Operational Creditor has chosen to go Forum Shopping by choosing to proceed under the Insolvency and Bankruptcy Code, 2016 in order to avoid the adjudication of the issues involved herein by way of going through full-fledged evidence. The issues involved therein require a fullfledged trial. The dubious conduct of the Operational Creditor thus gives rise to reasonable doubt in the mind as to the intention of filing the aforesaid application under section 9 of the Code. The Corporate Debtor has denied and disputed the date of default and list of dates, synopsis and Memorandum of Appeal as set out in the Application to initiate the CIRP since it is false fabricated and initiated only for the purpose to cover up an internal fraud committed by the agents of the Operational Creditor. 14. The Corporate Debtor further submitted that the alleged consignment of gold was supplied on 21/05/2019 to the Corporate Debtor. Whereas, the alleged cheque was issued on 20/05/2019, cannot be believed because as per the list of dates, the Operational Creditor delivered the gold to the Corporate Debtor even afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed by the Corporate Debtor and then the Corporate Debtor would release payment for the same. The said cheque which was dishonoured was issued by the Corporate Debtor as a security in order to safeguard the interests of the Operational Creditor, according to the practice that was customary in between the parties. The Corporate Debtor has submitted that the alleged sign and seal as is apparent from the Tax Invoice is forged and fake and thus denied by the Corporate Debtor. It is denied that the Corporate Debtor had paid the alleged principal sum towards the payment of receipt of the gold ornament as alleged vide cheque no, 000181 drawn of Kotak Mahindra Bank, Synagogue Street Branch as advance payment on 20/05/2019. It is submitted that the cheque was security cheque issued according to the business custom and practice in between the parties. Since the Operational Creditor did not perform its duty by delivering the consignment, the question of payment by the Corporate Debtor cannot arise. The performance of contract therefore, is incomplete and as such cannot be enforced. 19. The Corporate Debtor has further submitted that there was no telephonic conversation between the Opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered. The Corporate Debtor has submitted that the consignment of gold was supplied on 21st May, 2019 to the Corporate Debtor. It is submitted in the reply that since no gold was ever delivered to the Corporate Debtor, the question of encashment of security cheque does not arise. The Corporate Debtor submitted that the Operational Creditor has made contradictory statements. On the one hand, it is submitted by the Operational Creditor that the consignment of gold was supplied on 21st May, 2019 to the Corporate Debtor, whereas the alleged cheque was issued on 20th May,2019 and the same was sent for encashment on the same date. Further, the alleged cheque got dishonoured on 21st May, 2019. Thus, it is not believable that the Operational Creditor delivered the gold to the Corporate Debtor, even after the dishonour of the security cheque as alleged. It is submitted in the reply that since no gold was ever delivered to the Corporate Debtor, the question of encashment of security cheque does not and cannot arise and that the plea of the Operational Creditor about the delivery of gold is altogether false. The Corporate Debtor has even denied the receipt of gold by the Corporate Debtor as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itor for having committed a fraud with it. 28. It is highly improbable that the Corporate Debtor would issue a cheque of the exact amount of invoice as a security cheque. The invoice is dated 21st May, 2019 and the cheque is dated 20th May, 2019. If as per the Operational Creditor, the new gold ornaments weighting 262.120 Gram as per work order for Rs.8,93,911/- were supplied to the Corporate Debtor on 21st May, 2019 and the Corporate Debtor received the supplies after verification as good without any objection regrading the product quality in the supply of materials. 29. We do not think that the Corporate Debtor would issue a cheque of exactly the same Invoice amount without receiving the goods or the Invoice. We do not believe that it was a security cheque. The dispute has been raised by the Corporate Debtor only after receipt of the Demand Notice. The Operational Creditor has been able to prove its case and the plea raised by the Corporate Debtor is very week defence, which would not nullify the claim of the Operational Creditor. We, therefore, order that this petition deserves to be admitted and the defence raised by the Corporate Debtor is, therefore, rejected. 30. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ms. Rachna Jhunjhunwala, IRP having Reg. No. IBBI/IPA-001/IP-P00389/2017-18/10707 email ID. [email protected] to act as Interim Resolution Professional (IRP). He shall file Form-2, and that no disciplinary proceedings are pending against him with the Board. x) Ms. Rachna Jhunjhunwala, 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 Creditors and submit the resolution passed by the Committee of Creditors and shall identify the prospective Res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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