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2020 (1) TMI 1519 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - application is filed by an authorised person on behalf of the operational creditor - proper authority of present petition or not - qualified demand notice or not - proper documents annexed to the application or not - agreement between the applicant and respondent in relation to the rate of interest to be charged on account of delay, present or not - delivery of goods took place or not - HELD THAT:- In toto, the respondent has denied the contentions raised by the applicant. Even the respondent has denied having received the consignment of goods against which the invoices are raised by the applicant. Present petition is with proper authority or not - HELD THAT:- The applicant company has duly passed a resolution in meeting of the Board of Directors on 04.12.2017, which has already been produced in the proceedings at page No. 39 whereby Mr. Pratik D. Shah is authorised as authorised representative of the petitioner to file company petition, Insolvency Petition etc. apart from other powers as required to proceed with applications or cases etc. Hence it cannot be said to be bad in law. Notice dated 11.12.2017 issued by the applicant qualifies as a demand notice or not - HELD THAT:- The notice issued on 11.12.2017 by the applicant demanding the operational debt is supported by all the required documents like copy of sale contract, list of invoice and copy of invoices as contemplated and envisaged under the provisions of the Code. As per the provisions of the code, Section 8 read with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 either a demand notice in form 3 or a copy of invoice attached with a notice in form 4, is required to initiate an Insolvency Application and so the demand notice duly qualifies as a demand notice under the Code. Whether the copies of relevant accounts from the bank/financial institution maintaining accounts of the applicant confirming that no payment is received from the respondent is annexed to the application or not - HELD THAT:- There is a requirement of furnishing other information and documentary evidence involving particulars of operational debt as well along with the application. This can be gathered from a reading of Section 9(3)(d) of the Code along with the entries mentioned in part V of form 5 under Rule 6. The important condition precedent is an occurrence of a default which can be proved, by means of other documentary evidence such as a letter written by the corporate debtor to the operational creditor confirming that a particular operational debt is due and payable. Whether there is an agreement between the applicant and respondent in relation to the rate of interest to be charged on account of delay? - HELD THAT:- In case if there is no agreement with respect to the interest in case of late payment, the provisions on the Interest Act, 1978 would apply. As per the Interest Act, 1978, interest can be claimed in any process of recovery of any debt or damages. Thus, the applicant is entitled to claim interest on the payment even in absence of any agreement between the applicant and the respondent, more so when there is nothing on record in writing showing that the applicant will not charge any interest for the payments delayed beyond due dates. Further, such statement itself is an admission on the part of the applicant that amount is due and payable to the petitioner but not the interest. Delivery of goods took place or not - HELD THAT:- On perusal of the records it is found that, prior to filing of the instant application, the respondent has never questioned about the delivery of goods in the communication made between the respondent and the applicant. That itself shows that the claim made by the respondent that no goods have been delivered to them is misleading, more so when all the documents like sales contract, tax invoice, bill of lading, packing list, certificate of origin, certificate of weight and declaration annexed to the application at page 10-16 bear stamp and signature of the respondent which shows that the respondent had received delivery of such goods. On perusal of the record it is found that the petition is complete in all respect - the amount involved is an operational debt and the same is due and payable to the applicant - the scheme is approved - application allowed.
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