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TMI Blog2023 (4) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Otherwise the Corporation Debtor would have rejected the entire materials at the time of unloading of the same. However, it is clear that the granite slabs supplied by the Operational Creditor were utilised by the Corporate Debtor and had placed the same in the premises of Airport Authority of Jaipur. There may be plausible reasons for SGB Infra Ltd to ask the Corporate Debtor to remove the flooring but fact remains that the Corporate Debtor had accepted the granite slabs supplied by the Operational Creditor without raising any dispute or objection. There is no reason to accept as if there was pre-existing dispute in between the Operational Creditor and Corporate Debtor. Besides this the Operational Creditor before the Adjudicating Authority has already taken a plea that he has filed an application under section 340 of Cr PC in respect of placing and using a document by committing forgery and interpolation and as such there are no ground to interfere with the impugned order nor there are any defect in the said impugned order. Appeal dismissed. - COMPANY APPEAL (AT)(INSOLVENCY) NO. 1019 OF 2022 - - - Dated:- 31-3-2023 - (Justice Rakesh Kumar) Member (Judicial) And (Dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2019 Rs.82,793/- - - 2 PI/03/19-20 27.09.2019 Rs.39,333/- - - 3 PI/04/19-20 13.10.2019 Rs.3,51,553/- 14.12.2019 19.12.2019 4 PI/07/19-20 25.10.2019 Rs.1,98,733/- 25.12.2019 04.01.2020 5 PI/10/19-20 16.11.2019 Rs.2,77,160/- 16.01.2020 18.01.2020 6 PI/12/19-20 05.12.2019 Rs.5,28,668/- 04.02.2020 25.02.2020 Total Rs.14,78,420/- 4. However, out of aforesaid claims some payments were made but non-payment of operational dues to an amount of Rs.11,95,447/- (Rupees Eleven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting 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 the details of loading and unloading stock. Further the applicant has only annexed pages running from 51 to 53 only and conveniently suppressed page No.54 and 55 of the said diary which contains the details of the deficient goods and the statement of lorry driver who mentions that the product is 14.5-15 mm and all these goods will be changed. Further it is submitted that the applicant has also suppressed the reply dated 07.01.2020 to its statutory notices issued under the Negotiable Instruments Act, 1881 wherein the issue of the quality of goods were raised categorically. 5. After filing of the reply by the Corporate Debtor the Operational creditor also filed a detailed rejoinder. The Operational Creditor further raised an issue that in reply the Corporate Debtor had brought on record certain forged documents and as such an application un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the material provided by the Applicant was not as per the specified purchase order i.e. the granite was of 15 mm to 15.5 mm whereas as per the specification of work orders it was supposed to be a range of 16 mm to 18 mm. The Corporate Debtor has submitted that the inspection report dated 16.12.2019 whereby it was directed to remove the flooring which is in city side porch area at on cost. 12. The Corporate Debtor has annexed a series of emails exchanged between the parties as Annexure I of the application. The Corporate Debtor vide mail dated 16.12.2019 has informed the Operational Creditor regarding the low quality of material and further informed that the management has decided to stop all payment on immediate basis. In reply to the said email the Applicant herein stated that the material was dispatched as per the speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 Creditor had proposed an IRP although the proposed IRP has withdrawn its consent before this Tribunal. Hence, this bench can appoint the RP from the pool of RPs empanelled with the IBBI. 18. In view of this Mr. Umang Jain, duly registered with the Insolvency and Bankruptcy Board of India, with Registration No. IBBI/IPA-001/IP-P01959/2020-2021/13105 (email:caumangjain @gmail.com: mobile No.+91 9351846668, is hereby appointed as the IRP. The IRP is directed to take all such steps as are required under the statute, inter alia in terms of Sections 15, 17, 18, 19, 20 and 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, and Rules and Regulation thereunder. 7. The present appeal has been preferred by the Corporate Debtor against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to reproduce para 5 of the reply as follows:- 5. That the contents of Para No. 7.4 of the Appeal are vehemently denied. It is submitted that the corporate debtor while submitting response to the insolvency application before the Ld. NCLT. Jaipur Bench has submitted forged and fabricated documents being Page No.55 which is a part of an Annexure-3 of the Reply to the Company Petition. A bare perusal of the Page No.55 as annexed alongwith the reply to the company petition gives an impression that material which has been unloaded by the operational creditor in the premises of the corporate debtor has been returned with the remark 2000 .. माल 14-1/2-15 mm है। यह पूरा माल बदला ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Deepak Medi, Director ADELANTE EXIM INDIA PRIVATE LIMITED G846, ROAD NO. 14. VISHWAKARMA INDUSTRIAL AREA JAIPUR-302013 PHONE NO. 6141-4915096 MOBILE NO. 491-3166815551 EMAIL ID: [email protected] Subject: REPLY OF YOUR MAIL, RECEIVED DATED 1642.2619 REGARDING QUALITY OF MATERIAL Dear Mr. Deepak, With respect to your mail received on 16.12.2019 regarding the quality of material supplied by in which you have allegedly raised a frivolous, concocted story regarding the low quality of material in order to save yourself from clutches of nonpayment of our dues. We have dispatched the materials per the specifications specified laid down in the said purchase order issued by you, and after getting approval quality check from your side that the materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued 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, learned counsel for R1 supports the impugned order. 13. Besides hearing learned counsel for the parties we have perused the entire material available on record. It is not in dispute that on the date of filing of application under Section 9 of the Code by the Operational Creditor there were outstanding debt amounting to Rs.11,95,447/- (Rupees Eleven lakhs Ninety Five thousand four hundred forty seven only) against the Corporate Debtor. Only objection in respect of pre-existing dispute which was asserted by the Corporate Debtor was thoroughly examined and satisfied by the Adjudicating Authority. It is true that under the provisions of Code if Adjudicating Authority is satisfied with pre existing dispute at the time of entertaining an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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