Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2020 (2) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (2) TMI 1427 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Debt - existence of debt and dispute or not - HELD THAT:- On perusal of the invoices, letter dated 26.07.2018 of ABN AMRO Bank N.V Belgiam Branch showing the monies received by the Applicant from the Corporate Debtor, Several follow up emails demanding payment of monies mentioned supra, it is established that the Applicant has supplied rough diamonds to Corporate Debtor. The receipt of which is not denied by the Corporate Debtor. The existence of 'operational debt' as per the provisions of the Code is established - Corporate Debtor has not denied the transactions with Applicant in the Reply to Demand Notice under section 8 of I & B Code, 2016. The Corporate Debtor has in fact sought for relevant documents in respect of the supplied diamonds. However, strangely, in the Reply to the Application, the Corporate Debtor has taken a contention that the diamonds supplied were supplied only for polishing and the same is not sale. The said contention is based on the invoices placed on record where it is provided that "Title to the goods invoiced herein will not pass from the seller to the buyer until the buyer has paid for the goods in full including any applicable expenses." The buyer of the goods, should within a reasonable time return the goods if the buyer rejects the sale. A buyer cannot keep the goods with him for an unreasonable time. It is seen here that the Corporate Debtor has not indicated to the Applicant, rejecting the goods supplied within reasonable time hence the Corporate debtor's contention does not sustain - On perusal of the invoices and the shipment delivery proof, the Corporate Debtor has failed to raise dispute in respect of the quality of goods despite the emails demanding payment of monies. The said materials were supplied in the year 2016. However, the dispute raised is only after this Application is filed. The Corporate debtor has defaulted in making payments to the Applicant on the respective due dates as mentioned in the Application and has failed to establish the existence of a bonafide dispute prior to the receipt of Demand Notice - It is established that the Corporate Debtor has defaulted in payment of operational debt of the Applicant which is above a sum of ₹ 1,00,000/-. On perusal of the dates of default in respect of each invoice mentioned in the Form 5, the claim made is within the period of limitation - The Application under sub-section (2) of Section 9 of I&B Code, 2016 is complete. The existence of operational debt of more than rupees one lakh against the corporate debtor and its default is proved. Accordingly, the petition filed under section 9 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the corporate debtor deserves to be admitted. Application admitted - moratorium declared.
|