9911796707
TMI Blog2022 (10) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... mited having CIN: U34102DL2010PTC211219 incorporated under the provisions of the provisions of the Companies Act, 1956 having its registered office situated at C-8, LGF II, East of Kailash New Delhi-110065 Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. The brief facts of the case leading to the filing of this petition as averred by the applicant are as follows: a) The applicant submits that the applicant is engaged in the business of sale and supply of materials such as M.S. Plates, Die Steel, Steel Alloy, Steel Rod, Steel Sheet, Steel Plates etc. The applicant further submits that the corporate debtor being satisfied with the quality of the goods supplied by the applicant, began placing regular orders for supply of goods with the Operational Creditor. The applicant adds that the applicant began maintaining a running account for the transactions between the applicant and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es along with the date of dishonor are detailed herein below: g) The applicant submits that pursuant to the dishonor of the cheques, the applicant sent legal notices under Section 138 of the Negotiable Instruments Act, 1881 to the corporate debtor, against dishonour of some of the aforesaid cheques. The applicant adds that applicant had thereafter also initiated requisite proceedings in respect of such cheques, before the Criminal Courts at Faridabad, which are pending adjudication. h) The applicant submits that the total liability for the supplies made by the applicant to the corporate debtor under invoices lastly raised on 20.08.2020, including the admitted liability, of the Corporate Debtor towards the applicant stood at Rs. 2,21,38,643/- as on 11.11.2021. The applicant adds that the corporate debtor was also liable to pay an interest of Rs. 2,56,35,294/- to the applicant as per the mutually agreed terms of the invoices. i) The applicant submits that the applicant had issued Demand Notice dated 25.11.2021 calling upon the corporate debtor to pay its outstanding dues amounting to a total of Rs. 4,77,73,937/- (Rupees Four Crores Seventy-Seven Lakhs Seventy-Three Thousand Ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which comes as Rs. 2,21,46,557 and the same was duly intimated to the applicant for adjustment against the pending dues if any. The corporate debtor further submit that despite numerous telephonic conversations and personal visits between the parties, the applicant continued to dilly dally the said adjustment on one pretext or the other, while, continuing to supply such goods to the Corporate. Debtor at the aforementioned exorbitant rates. d) The corporate debtor submits that considering the exorbitant and arbitrary pricing by applicant, the corporate debtor was forced to stop further dealing/purchasing material with/from the applicant since September 2020. The corporate debtor adds that it is noteworthy that in the month of October 2020, the applicant again agreed to adjust the whole amount from outstanding amount due as of date 20.08.2020. e) The corporate debtor submits that the corporate debtor has paid the applicant all the outstanding amount in various installments after adjustment of the exorbitant rates charged by the applicant. The corporate debtor further submits that there is no outstanding amount in the accounts book of the Corporate Debtor as the Corporate Debtor h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding principal amounting Rs. 2,21,38,643/- and interest amounting Rs. 2,56,35,294/-. From the averments of the applicant, no doubt that the applicant had issued demand notice ('first demand notice') dated 09.10.2020 for the outstanding operational debt amounting Rs. 5,60,46,493/- including Rs. 4,22,75,591/- as outstanding principal amount and outstanding interest amounting Rs. 1,37,70,902/- as on 16.03.2020, which was subsequently withdrawn by the applicant in view of the admission of the liability by the corporate debtor and part payment of Rs. 2,00,00,000/- by way of RTGS and further issuing 11 post-dated cheques for an aggregate amount of Rs. 2,16,00,465/- which were later dishonored at the time of presenting the cheques for encashment precisely during the period 09.04.2021 to 30.09.2021. 9. Further on a meticulous perusal of the ledger statements of the corporate debtor maintained in the books of the applicant and the invoices placed on record by the applicant, we observe that the applicant had supplied the goods to the corporate debtor during the financial year 2020 to 2021, precisely till 20.08.2020. The applicant had issued the demand notice dated 25.11.2021 (secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting dispute, we observe that the corporate debtor continued placing orders and receiving the goods from the applicant even after June, 2020 i.e., after the alleged discovery of the levying of exorbitant charges, therefore, this very act of the corporate debtor estopped the corporate debtor from raising the contention of the pre-existing dispute with regard to the arbitrary and exorbitant rates being charged by the corporate debtor. 13. As regard to the corporate debtor's contention that some of the invoices do not have receiving of the corporate debtor and therefore, it is clear that the goods were never received by the corporate debtor, we observe that the invoices claimed by the corporate debtor on which no receiving was engraved, there are total of 19 alleged invoices, which relates from 21.02.2019 to 12.12.2019, pertinent to note that the same invoices were also claimed by the applicant in its first demand notice dated 09.10.2020, and the corporate debtor failed to bring on record any correspondence showing that the corporate debtor had raised dispute with regard to the invoices claimed by the applicant or any correspondence denying the receipt of the said invoices. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest is payable to the Operational or Financial Creditor then the debt will include interest", Further the Hon'ble NCLAT in case Prashat Agarwal v. Vikash Parasrampuria, [Company Appeal (AT) (Ins) No. 690 of 2022, judgment dated 15.07.2021, observed that "it is clear from the facts that the total amount for maintainability of claim will include both principal debt amount as well as interest on delayed payment which was clearly stipulated in the invoice itself." 18. Therefore, we are of the earnest view that the applicant had claimed the interest @ 24% p.a. on the delayed payment on the as per the terms and conditions contained in the invoices raised by the applicant and duly accepted by the corporate debtor. Accordingly, the citation CBRE South Asia Pvt. Ltd. v. M/s. United Concepts and Solutions Pvt. Ltd. (CP-IB/797/ND/2021) relied by the corporate debtor will not be applicable in the present case and the contention of the corporate debtor is rebutted. 19. In this regard, the reliance is placed on the citation Mobilox Innovations Pvt. Ltd. V. Kirusa Software Pvt. Ltd., C.A. No. 9405/2017 decided on 21/09/2017 at paragraph 25 it is observed as under: "Adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the pronouncement of the order. 23. We direct the applicant to deposit a sum of Rs. 2 lacs with the Interim Resolution Professional, namely Mr. Pradeep Kumar to meet out the expense to perform the functions assigned to him in accordance with regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within one week from the date of receipt of this order by the Operational Creditor. The amount however be subject to adjustment by the Committee of Creditors, as accounted for by Interim Resolution Professional, and shall be paid back to the Operational Creditor. 24. We also declare moratorium in terms of Section 14 of the Code. The necessary consequences of imposing the moratorium flows from the provisions of Section 14(1)(a), (b), (c) & (d) of the Code. Thus, the following prohibitions are imposed: "(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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