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TMI Blog2022 (11) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... such it is construed that there is no pre-existing dispute. The present petition made by the Operational Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. Application admitted - moratorium declared. - C.P (IB) No. 27/KB/2019 - - - Dated:- 1-11-2022 - Shri Rohit Kapoor : Member (Judicial) And Shri Balraj Joshi : Member (Technical) For the Operational Creditor: Ms. Sonal Shah, Adv. Ms. Kushagra Shah, Adv. Mr. Aniket Chaudhury, Adv. For the Corporate Debtor: Mr. Jishnu Saha, Sr. adv. Mr. Sayantan Bose, Adv. Ms. Madhurima Das, Adv. Mr. Shounak Mukhopadhyay, 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. Mohan Lal Tiwari, Sr. General Manager (Commercial), Simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ICI Bank and Syndicate Bank). However, in case of third lots, it was made in two tranches. Delivery of the first tranche of 90 bogies was made to the Corporate Debtor, and against such supply a sum of Rs.98,32,716/- (Rupees Ninety Eight Lakh Thirty Two Thousand Seven Hundred Sixteen only). 5.5 Further, on the delivery of second tranche of 44 bogies, and on the demand of the Corporate Debtor for a sum of Rs.94,05,206/- (Rupees Ninety Four Lakh Five Thousand Two Hundred Six only), the Operational Creditor s Bank intimated that the Corporate Debtor s Bank refused to honor the LoC because of some discrepancies in the LoC. 5.6 The Corporate Debtor s Banker s refusal to honor the LoC was soon followed by a demand letter by the Corporate Debtor against the delayed cancellation of two separate and unconnected purchase orders being nos. CIMM/17- 18/001617 and CIMM/17-18/001618 for a purported sum of Rs.8,31,01,335/- (Rupees Eight Crore Thirty One Lakh One Thousand Three Hundred Thirty Five only). 5.7 The said Purchase orders were cancelled because no inspection request form was issued by the Corporate Debtor upon issuing the Purchase Order, secondly there was a huge escalation in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se orders was Rs.12,27,18,750/-. 6.4 Against a proforma invoice bearing No. 18-19/2740 for a sum of Rs.89,25,000/- the Corporate Debtor had made payment of a sum of Rs.69,42,600/- after deducting a sum of Rs. 19,82,400/- paid by it to one Mini Iron on behalf of the Operational Creditor. The fact of such payment having been made against the said proforma invoice was also intimated to the Operational Creditor by an email dated 30th June, 2018. 6.5 The proforma invoice mentioned above was raised against the Purchase Order No. CIMM/17-18/001618. The Operational Creditor, however, failed to supply any wagons under the said purchase order. So far as purchase order No.CIMM/17-18/001617 is concerned, only 40 wagons were supplied beyond the prescribed time. The Corporate Debtor, therefore, became entitled to a liquidated sum equivalent to 5% of the value of the said purchase orders towards liquidated damages in terms thereof. 6.6 The claim of the Corporate Debtor being for an ascertained sum of money legally recoverable by it from the Operational Creditor in respect of the same set of transactions, which the Corporate Debtor is entitled to set off against the claim of the Operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the NCLT, Mumbai Bench is pertaining to the non - supplies of Bogies which is not even covered under ambit of Operational Debt and moreover, the same is against different Purchase order nos. CIMM/17-17/001617 and CIMM/17-18/001618, which is nowhere connected to these transactions and form a separate contract altogether. Further, the same was accepted by the Corporate Debtor in their reply, where in they have categorically stated that The Corporate Debtor not only has a bona fide defence, but also a larger claim against the Operational Creditor arising out of separate transactions[at page 4 of the Reply at para 7]. 11. Further, the Ld. Sr. Counsel appearing for the Corporate Debtor relied on the Judgment by the Hon ble Supreme Court in Union of India -us-Karam Chand Thapar Bros. (Coal Sales) Ltd. Ors. [(2004) 3 SCC 504] [para 18], wherein it was held that the principles of legal set off embodied in Order VIII rule 6 of the Code of Civil Procedure, 1908 can beapplied in relation to enforcement of money claims even in writ proceedings in absence of specific provision of law or settled rule of procedure governing decision of such dispute. Reference in this regard has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no pre-existing dispute. 14. In view of the above facts and circumstances, we are satisfied that the present petition made by the Operational Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. Further, as envisaged under section 9(3)(b) of the Code, an affidavit has also been filed by the Operational Creditor. 15. It is, accordingly, hereby ordered as follows:- a) The application bearing CP (IB) No. 27/KB/2019 filed by Simplex Castings Limited, under section 9 of the Code read with rule 6(1) of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating CIRP against Titagarh Wagons Limited, is admitted. b) There shall be a moratorium under section 14 of the IBC. c) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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