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TMI Blog2022 (5) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor has committed a default,the Operational Creditor has to place all documents on record. This Adjudicating Authority has only to see the authenticity of the information and the documents for reaching a conclusion whether a case for admission of the petition or initiation of CIRP is made out or not. The prayer clause of the Operational Creditor seeking directions upon the Corporate Debtor to produce all the documents by way of an affidavit, so that the Operational Creditor may prove its case against the Corporate Debtor is, to our mind, beyond our jurisdiction. Each Operational Creditor has to prove its own case. It cannot base its claim on the basis of documents to be produced by the opposite party and this Adjudicating Authority would not like to be passing such a direction upon the Corporate Debtor to facilitate the admission of petition filed by the Operational Creditor - Application dismissed. - IA(IBC)/770/KB/2021 in C.P (IB) No.648/KB/2019 - - - Dated:- 24-5-2022 - Mr. Rohit Kapoor, Member (Judicial) and Mr. Harish Chander Suri, Member (Technical) Mr. Joy Saha.Sr. Adv. , Mr. Arik Banerjee, Adv., Mr.Rajib Mullick, Adv., Mr. Rakesh Sarkar, Adv. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructures like Gantry Trestle, Walk and Way and Handrails cross over, take up structures etc. as per the drawing of Scorpio Engineering Private Limited .It is further that the purchase order was placed for a total sum of Rs.9,39,40,000/-. The purchase order was thereafter amened and rate was increased including the total quality and the total sum of the purchase order was increased to Rs.11,20,64,000/- and Excise Duty as applicable at the time of dispatch etc. It is submitted that the goods for which purchase orders were placed by Scorpio Engineering Pvt. Ltd. upon the Operational Creditor were to be delivered to the consignee M/s IPCHL, who later changed its name with effect from 15th January, 2018 to M/s Hiranmaye Engineering Ltd.It is submitted that from the purchase order of 15th September, 2014, the terms and conditions of which remained the same even in the amended purchase order of 14th February, 2015 but has only the value and quantity was increased. M/s IPCHL being the consignee, for the delivery of the goods was to make direct payment within 15 days from the date of dispatch to the Operational Creditor in respect of the invoice raised. It is submitted that the copies of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n though as per the purchase order payments were to be made by the Corporate Debtor directly to Operational Creditor but Scorpio Engineering Private Limited out of its own volition by opening letters of credit and made payment for a total sum of Rs.90,67,353/- on various dates i.e. on 4th January, 2015, 2nd February, 2015 and 15th March, 2015 in five tranches. The balance payment of Rs.6,95,64,820/- was paid by the Corporate Debtor on various dates starting from 14th February, 2015. The last of such payment was made on 2nd February, 2016. A chart showing the total amount of bill raised and part payment received in respect of the particular invoices with dates are annexed as Annexure-D. 10. It is submitted that as it will be evident from the ledger account, it is evident that the parties used to maintain a present and continuous running account wherein the Corporate Debtor used to make part payment and on account of payment in respect of bills raised. The last of such bill was raised by the Operational Creditor upon the Corporate Debtor on 9th March, 2016. As parties used to maintain a running and continuous account and the Operational debt has not been paid till date by the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action between the parties. Even the minutes of 12th January, 2016 was given a go bye by the Corporate Debtor itself by making payment thereafter even directly to the Operational Creditor on 2nd February, 2016. The Operational Creditor states that relevant bank certificate given by the banker of the Operational Creditor showing the details of the payment made by the Corporate Debtor and the last date of payment is annexed as Annexure-F. 12. It is submitted that the Operational Creditor is a registered organization under Micro, Small and Medium Enterprises Act,2006 Documentary evidence in support of such registration in favour of the Operational Creditor is annexed as Annexure-G. 13. It is submitted that as per the Operational Creditor, the entire dispatch was completed on 09.03.2016 and as per the terms of the purchase order, the Corporate Debtor was to make payment within 15 days from the date of dispatch. In spite of such completion of dispatch, the Corporate Debtor apart from making part payment as a result of present and continuous account being maintained between the parties has not paid the balance amount of Rs.5,34,74,758/- in principal to the Operational Creditor. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.In fact, none of the emails were replied to and by one email of April 19, 2018 without disputing the amount due the corporate debtor welcomed the Operational Creditor for resolving the matter. 18. It is submitted that thereafter, several meetings were held between the parties till Januar,2019 but none of such meetings yielded any fruitful result. As such, as of date a sum of Rs.5,34,74,758/- is due as operational debt from the Corporate Debtor towards the Operational Creditor. 19. It is submitted that the Operational Creditor being a micro, small and medium scale enterprise under section 15 and 16 of the Micro, Small and Medium Enterprise Development Act,2006 is entitled to interest in view of the failure on the part of the Corporate Debtor to pay the sum dues to the Operational Creditor at compound interest rate on monthly rent at the rate of three times of the bank rate notified by the Reserve Bank of India. As on date the notified rate of bank rate of Reserve Bank of India is 10.70% since the act of Micro, Small and Medium Scale Enterprise Development Act, 2006 is a special statute and the provisions of Insolvency and Bankruptcy Code, 2016 does not specify any particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor on 24th January, 2019. The Corporate Debtor has given a reply to such notice by letter dated 3rd February, 2019 whereby the Corporate Debtor attempted to raise defense on the ground that the Operational Creditor has no privity of contract with Corporate Debtor and as such the Corporate Debtor is not liable to pay money to the Operational Creditor. Further false and frivolous defense has also been raised in regard to the minutes of the meeting dated 12th January, 2016 by contending that it is the liability of Scorpio Engineering Private Limited to release payments of Corporate Debtor. Further, a false and frivolous defense has sought to be raised on the ground of arbitration pending between IPCHL and Scorpio Engineering Private Limited as Scorpio Engineering Private Limited did not successfully complete the project of IPC HL and for that IPCHL is not liable to pay money to the Operational Creditor as they are sub-contractor. In this aspect of the Operational Creditor states that from the terms of the purchase order a privity of contract in respect of payment liability of IPCHL towards Operational Creditor is evident. Further minute of meeting dated 12th January, 2016 was never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Creditor under Section 8 dated 08/01.2019 and reply notice dated 3rd February, 2019 is annexed as Annexure-L. 23. It is submitted that from the reply notice dated 3rd February, 2019 , the Operational Creditor first time came to know that IPCHL has changed its name to Hiranmaye Engineering Limited and as such similar notice for the sake of convenience and technicalities was sent to the Corporate Debtor in its new name on 12/02/2019 which is the Corporate Debtor has received on 14/02/2019. A copy of the said demand notice dated 12th February, 2019 along with postal track receipt and track record as annexed as Annexure-M. 24. It is submitted that in view of the facts and circumstances, the Operational Creditor is constrained to take action against the Corporate Debtor on failure of them to pay the admitted debts. As such, the Operational Creditor is compelled to move a petition under the Insolvency and Bankruptcy Code, 2016. Hence, the present petition. 25. In reply to the said petition, the Corporate Debtor in the main petition has submitted that the application has not been filed by an authorized person and therefore, the application is liable to be dismissed. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no point of time ever, no bills were raised on the Corporate Debtor by the Operational Creditor thereby once again proving the fact that there is no privity of contract between Corporate Debtor and Operational Creditor. The Operational Creditor has deliberately suppressed the fact that no contract was ever executed between Operational Creditor and Corporate Debtor and the Operational Creditor issued a demand notice under section 8 IBC, 2016 and filed the instant application under section 9 IBC, 2016 against the Corporate Debtor solely in order to harass Corporate Debtor and extort money out of Corporate Debtor and unjustly enrich itself at the expense of the Corporate Debtor without having any basis to do the same. c. Furthermore, the purported demand notice was issued and the instant application was filed against the Corporate Debtor after willful suppression of documents by Operational Creditor. The Operational Creditor did not annex and describe the Minutes of the Meeting between Corporate Debtor, Operational Creditor and Scorpio dated 12th January, 2016, which is self explanatory on the terms of the payment and according to that Minutes of the meeting, Corporate Debtor is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. The Corporate Debtor state that work on the aforementioned coal handling plant had been hampered and delayed by, inter alia, the failure of Scorpio to pay its own sub-contractors engaged by itself in furtherance of its own objectives under the aforementioned contract. Therefore, it was decided in a meeting between the Corporate Debtor, the Operational Creditor and Scorpio, held on 12/01/2016 that the Corporate Debtor will make payment to Scorpio based on progressive realization of project targets and the same will be given to the sub contractors employed /engaged by Scorpio by Scorpio itself. g. The Corporate Debtor states that the aforementioned coal handling plant for a 3x150MW Thermal Power Project in Haldia, West Bengal is a very important project for the Corporate Debtor. The pressing need for its smooth functioning and commercial success motivated the Corporate Debtor to make an advance payment to Scorpio to facilitate the payment of its sub-contractors. The sole objective of the Corporate Debtor behind doing so was ensuring that work on the aforementioned project is not hampered and delayed. The Minutes of Meetings dated 28th April, 2015, and 8th July, 2015, annexed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation relating to existing outstanding debt and default in repayment thereof by the Corporate Debtor. If the Corporate Debtor has committed a default,the Operational Creditor has to place all documents on record. This Adjudicating Authority has only to see the authenticity of the information and the documents for reaching a conclusion whether a case for admission of the petition or initiation of CIRP is made out or not. The prayer clause of the Operational Creditor seeking directions upon the Corporate Debtor to produce all the documents by way of an affidavit, so that the Operational Creditor may prove its case against the Corporate Debtor is, to our mind, beyond our jurisdiction. Each Operational Creditor has to prove its own case. It cannot base its claim on the basis of documents to be produced by the opposite party and this Adjudicating Authority would not like to be passing such a direction upon the Corporate Debtor to facilitate the admission of petition filed by the Operational Creditor. I.A.No. 770/KB/2019 filed by the Operational Creditor seeking aforesaid directions, therefore, has no substance and cannot be accepted. The application is, therefore, dismissed. 28. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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