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TMI Blog2022 (10) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, Adv. ORDER Per Balraj Joshi, Member (Technical) 1. The Court convened via hybrid mode. 2. This is a Company Petition filed under section 9 of the Insolvency and Bankruptcy Code, 2016 ( the Code ) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Mr. Basanta Kumar Baral, Partner, Talbot Company ( Operational Creditor ), duly authorised vide resolution dated 15 July, 2019 Annexure C, at page 17 of the Petition for initiation of Corporate Insolvency Resolution Process ( CIRP ) against Austin Distributers Private Limited ( Corporate Debtor ). 3. The present Petition was filed on 25 October, 2019 before this Adjudicating Authority. The total amount claimed in default is Rs.8,17,678.54/- (Rupees Eight Lakh Seventeen Thousand Six Hundred Seventy Eight and Fifty Four Paisa only) and interest of Rs.1,46,052/- (Rupees One Lakh Forty Six Thousand Fifty Two only) @ 24% till 15 July, 2019. 4. In part II of the Petition the authorized share capital of the Corporate Debtor is Rs.4,00,00,000/- (Rupees Four Crore only) with subscribed share capital of Rs.3,40,09,330/- (Rupees Three Crore Forty Lakh Nine Thousand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Creditor. 5.7 Further, by an email dated 21 May, 2019 the Corporate Debtor not only acknowledged its liability towards the dues of the Operational Creditor but also assured that necessary payments will be made. In the email dated 21 May, 2019 [at page 311 313 of the Petition] the only reason given by the Corporate Debtor for non-payment of the dues of the Operational Creditor was on account of the tough market situation faced by the Corporate Debtor. Despite the email dated May 21, 2019, no payment as regards the dues of the Operational Creditor has been made by the corporate debtor. 5.8 In the said circumstances, the Operational Creditor issued a demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 on 26 July, 2019 calling upon the Corporate Debtor to make payments of its dues within 10 days of receipt of the notice failing which the Operational Creditor shall initiate a corporate insolvency resolution process in respect of the Corporate Debtor. The said notice dated 26 July, 2019 was duly received by the Corporate Debtor. 5.9 The Corporate Debtor replied to the said demand notice by a letter dated 06 August, 2019. The Corporate Debtor made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail on February 26, 2016, November 10, 2017, October 2, 2018 (12:48 PM), March 12, 2019, March 14, 2019, but no compensatory action was never taken by the Operational Creditor [Annexure A of the Reply]. 6.7 The services provided by the Operational Creditor to the Corporate Debtor violated the terms and conditions of the said contracts of service as well as the general industry standards of care and diligence expected from a provider of such services on commercial basis. 6.8 A bare perusal of the emails constituting Annexure A hereto will make it plain and evident that the willful violation of contracted quality and performance standards by the Operational Creditor caused the Corporate Debtor immense business losses, saddled the business and property of the Corporate Debtor with entirely avoidable risk and resulted in theft of, as well as damage to, property belonging to the Corporate Debtor. The Corporate Debtor is entitled to be compensated by the Operational Creditor for such contractual violations 6.9 The Operational Creditor has even admitted and acknowledged that it has rendered defective and deficient services to the Corporate Debtor and engaged incompetent and une ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further, the Ld. Counsel appearing for the Operational Creditor relied on the email dated 21 May, 2019 (at page 311) wherein, the Corporate Debtor acknowledged their outstanding dues and promised to clear the same. Whereas, on the contrary the Corporate Debtor contests the said email on the grounds that it is a creature of fraud, forgery and misrepresentation, because the said email does not bear any individual office holder s name anywhere in the mail as the issuing party. Further, HR and Admin Dept is not authorized to issue any admission of debt or balance confirmation. 11. However, be that as it may, it is imperative to mention that from the year 2016 to 2019 the Corporate Debtor raised several issued with respect to the services provided by the Operational Creditor. Further, the email dated 21 May, 2019 is very unconventional because it is the same Corporate Debtor who has been disputing the services rendered by the Operational Creditor. 12. With respect to the pre-existing dispute, we also rely on Innoventive Industries Ltd. v. ICICI Bank and Anr., (2018) 1 SCC 407 where the Hon ble Supreme Court while explaining the provisions of Sections 7 or 9 observed and held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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