9911796707
TMI Blog2023 (1) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial fact in their Section 9 application that their partner Shri Moti Kumar was working as an accountant in the Respondent Company during 2014 to 2016 when the transactions under reference have occurred between the parties. The Adjudicating Authority has therefore come to the conclusion that this dual employment of Shri Moti Kumar not only casts serious doubt on the transactions carried out between the Operational Creditor and the Corporate Debtor during the period of February 2014 to May 2016 but also points towards possible manipulation. The Adjudicating Authority having noted the material concealment of the fact by the Operational Creditor regarding the fact that Shri Moti Kumar was working concurrently in both the entities i.e. the partnership firm of the Operational Creditor and the Corporate Debtor at the time of transactions and after having considered the rival submissions and after seeing the documents on record have held that it raises serious doubts as to whether the Respondent really committed any default or there is an element of fraud in the transactions. It has therefore held that the dispute needs more investigation and beyond the scope of the Adjudicating Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor is liable to pay an amount of Rs.72,31,268.36 against outstanding bills. Further, interest at the rate of 24 per cent was additionally chargeable as per market practice and as mentioned in the invoice. However, since the Corporate Debtor did not clear the outstanding dues after May 2016, the Appellant issued a demand notice under Section 8 of IBC on 22.11.2018. The notice was delivered on the Corporate Debtor on 26.11.2018. Since the corporate debtor did not reply to the demand notice and did not make any further payments to discharge their outstanding liability and furthermore no notice of dispute was received, application under Section 9 was filed before the Adjudicating Authority for initiation of CIRP against the Corporate Debtor. 4. The Learned Counsel for the Respondent refuting the contentions made by the Appellant stated that in their reply before the Adjudicating Authority it was submitted that no default had occurred in the discharge of their liabilities and that the claim of the Operational Creditor contained disputed question of facts which require investigation by civil courts. It is further submitted that one Shri Moti Kumar was working as an account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ountant with the Corporate Debtor stipulated that he shall not take up directly or indirectly any outside duties, works or consultancy while in employment of the company without express written permission from the management. The Adjudicating Authority after perusing the partnership deed dated 14.02.2014 has also noted that at the point of time when Shri Moti Kumar was admitted as one of the partners in the partnership firm of the Operational Creditor, he was still working as an accountant with the Corporate Debtor and therefore this conduct was in breach of the prohibition imposed by Clause 4 of his appointment letter. We also note that no material document has been produced by the Appellant to show that the Shri Moti Kumar worked with the Operational Creditor while also serving as an accountant with the Corporate Debtor with express written permission from the latter. It is an undisputed fact that Shri Moti Kumar resigned from the Corporate Debtor firm finally on 08.10.2016 at which point of time he worked both with the Corporate Debtor and the Operational Creditor. There is also no doubt in our mind that at the time of joining the partnership firm, he was barred from taking any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods precedes the date of invoices as at pages 139, 145, 146 of APB. Furthermore, some invoices submitted are marked with handwritten MRN number without any receipt delivery stamp which are placed from pages 378-400 of APB. It was therefore submitted that the invoices lack authenticity being forged and fabricated and thus the liability of the Corporate Debtor has been created by fraudulent means. 11. We note that the Adjudicating Authority having noted the material concealment of the fact by the Operational Creditor regarding the fact that Shri Moti Kumar was working concurrently in both the entities i.e. the partnership firm of the Operational Creditor and the Corporate Debtor at the time of transactions and after having considered the rival submissions and after seeing the documents on record have held that it raises serious doubts as to whether the Respondent really committed any default or there is an element of fraud in the transactions. It has therefore held that the dispute needs more investigation and beyond the scope of the Adjudicating Authority in terms of the judgement of the Hon'ble Supreme Court in (2018) 1SCC 353 Mobilox Innovations Pvt Ltd vs Kirusa Software Pvt L ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
