9911796707
TMI Blog2023 (4) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... application filed under Section 9 of the Code by Operational Creditor who is Respondent No.2 in the present appeal. In sum and substance by the impugned order after admitting application filed under Section 9 of the code, Corporate Insolvency Resolution Process (CIRP) was initiated against Respondent No.1 (Corporate Debtor). 2. The appellant is the suspended director and shareholder of Respondent No.1 (Corporate Debtor) namely M/s Shalfeyo Industries Private Ltd which was earlier M/s Adelante Exim India Private Ltd. The Respondent No.2, 'Operational Creditor' approached the Adjudicating Authority by filing an application under Section 9 of the Code read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The said case was registered as CP No.(IB)-79/9/JPR/2020. After filing of the case notices were issued by the Adjudicating Authority and thereafter the Corporate Debtor appeared and filed its response. 3. The applicant, Operational Creditor, alleged in the application that Corporate Debtor had placed purchase orders for supply of granite stone and six invoices were raised for total amount of Rs. 14,78,420/- (Rupees Fourteen lakhs sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfra Limited on 15.12.2019, there was deficiency found in the goods in the material quality and it was observed that the granite was of 15 mm to 15.5 mm whereas as per the specification of work orders, it was supposed to be of range of 16 mm to 18 mm. Thereafter, SGB Infra Ltd vide letter dated 16.12.2019 requested removal of the flooring on account of aforementioned difference. c. The Corporate Debtor duly communicated to aforesaid issues to the Operational Creditor and parallelly wrote to his banker to stop payment of cheques issued to the Applicant. However, the applicant unloaded the further material at the site despite clear instructions of return back given to his lorry drivers and the personnel but they refrained to take back the same. It is also pertinent to mention that even the staff of the Applicant himself had clearly given in writing that they are unloading the material as per instructions and directions of his boss. d. The Corporate Debtor has further submitted that Annexure-E of the Application annexed to show the receipt of quality check of goods, is actually not the receipts of quality checks rather the pages from the diaries of guard/custodian who maintains th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.09.2019 amounting to Rs. 82,973/- and Rs. 39,333/- respectively are not a matter of dispute as the Applicant itself has stated that the amount of these invoices has duly been paid with respect to the invoices dated 13.10.2019 an amount of Rs. 1,90.886/- (3,51,553 i.e. the bill amount (-) 1,60,667 i.e. the balance amount apportioned towards the third bill). Hence, the total amount of debt defaulted from the 4 invoices is Rs. 11,95,447/-. It is seen from the records produced before us that the 4 post-dated cheques dated 14.12.2019, 25.12.2019, 16.01.2020 & 04.02.2020 were all presented in the bank for clearance but for the cheque dated 14.12.2019, 25.12.2019 & 04.02.2020 the payment was stopped by the drawer. Whereas for the cheque dated 16.01.2020, the cheque was returned with the endorsement of funds insufficient. The said goods were admittedly delivered to the Corporate Debtor. 11. It is seen from Annexure E-5 of the application that the goods were duly supplied to the Corporate Debtor. The Corporate Debtor has raised the point that there was an existence of a dispute to the quality of goods that was supplied by the Operational Creditor. The Corporate Debtor has submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated that the goods were jointly inspected by the parties. 14. Hence, in our view, there was no dispute raised at the time of delivery of goods when the inspection was required to be carried out. It is only after the Inspection Report was provided to the Corporate Debtor, that the Corporate Debtor raised issues regarding the quality of goods delivered. There exists a clear debt as the Corporate Debtor has consumed the goods and therefore, is under an obligation to pay the Operational Creditor with respect to the goods consumed. It is evident from the reasons stated hereabove that Corporate Debtor has clearly defaulted in payment of debt due to the Operational Creditor. 16. Therefore, in the present matter at hand, there is a clear debt, repayment of which has been defaulted by the Corporate Debtor and there appears to be no pre-existing dispute between the parties. Any allusion to such dispute appears to be confirmed. 17. Under sub-section (4) of Section 9 of the Code, the Operational Creditor may propose the name of a Resolution Professional to be appointed as Interim Resolution Professional (IRP) but it is not obliged to do so. In the instant case, the Operational Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent appeal detailed reply has also been filed by the Respondent No.2/Operational Creditor. It has been categorically stated in the reply that the Operational Creditor had supplied material to the Corporate Debtor in respect of which Operational Creditor also raised six invoices to the tune of Rs.14,78,420/- and till initiation of CIRP an amount of Rs.11,95,447/- was outstanding whereas no dispute with regard to quality of goods was raised by the Corporate Debtor. However, he refused to make payment resulting in initiation of CIRP against the Corporate Debtor. It is further case of the Respondent No.2/Operational Creditor that whatever material were supplied by him were accepted by the Corporate Debtor without any dispute and this was the reason that the Corporate Debtor utilised entire granite slabs supplied by the Operational Creditor and since, it appears that the work was not executed in appropriate manner SGB Infra Ltd had asked the Corporate Debtor for removal of floor from the premises of the Airport Authority, Jaipur. In para 5 of the reply it has been indicated as if the Corporate Debtor has made some forgery in record in respect of unloading of the material. We propose t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Rs.3,51,553/- stood dishonoured on 19.12.2019. The Operational Creditor issued demand notice under Section 8 of the Code on 27.12.2019. Even after issuance of demand notice three cheques i.e. an amount of Rs.1,98,073/-, 2,77,160/- and 5,28,668/- stood dishonoured on 4.1.2020, 18.1.2020 and 25.2.2020 respectively. Learned counsel for Respondent No.2 has argued that though there was no plausible pre-existing dispute, the Corporate Debtor with a view to get the application filed under Section 9 of the code, rejected has taken as an unsustainable plea that too by forging certain documents as if there was a dispute. Learned Counsel for Respondent No.2 has also drawn our attention to a communication made by Operational Creditor to the Corporate Debtor which was in reply to mail dated 16.12.2019 sent by the Corporate Debtor regarding quality of material. He submits that the said reply which is at running page 74 of the Memo of Appeal itself reflects that the Corporate Debtor had raised frivolous and concocted story regarding the quality. We may propose to reproduce the communication sent on behalf of the Operational Creditor to Corporate Debtor which is at page 74 as follows:- Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Prime Impex Stones Akul Singhal Partner Contact No.9928092694" 10. Learned counsel for the Respondent No.2 has also drawn our attention to Page 25 and 26 of its reply to show that even the Corporate Debtor by making interpolation/forgery had brought a document before the Adjudicating Authority as if after unloading it was stated for replacing the materials. By way of drawing our attention to Page 25 and 26 it was argued that Page 26 was genuine one in respect of receipt of materials whereas page 25 is the same document but subsequently interpolation was made as if the slabs were between 14 ½ and 15 mm. We may not do better than to reproduce both the documents by scanning as follows : 11. Accordingly it has been argued that after filing of the reply before the Adjudicating Authority a separate application under Section 340 of Cr PC was also filed making allegation of bringing and using forged documents in a court proceeding. In sum and substance it has been argued that there was no plausible pre-existing dispute and as such learned Adjudicating Authority has rightly rejected the plea of Corporate Debtor and initiated CIRP. 12. Mr. Pushpendra Singh Bhadoriya, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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