TMI Blog2018 (6) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... and this application is liable to be dismissed - CP (IB) No. 547/KB/2017 - - - Dated:- 16-5-2018 - MR. JINAN K. R. AND MR. M.B. GOSAVI, JJ. For The Operational creditor : Mr. Soumik chakraborty, Mr. Sourojit Dasgupta And Ms. deebleena Ganguly For The Corporate Debtor : CS Deepak Kumar Khaitan ORDER Per Shri Jinan K. R., Member (Judicial) This is an application filed u/s. 9 of the Insolvency and Bankruptcy Code, 2016 by M/s. Daya Engineering Works Pvt. Ltd. allegedly an operational creditor for initiating Corporate Insolvency Resolution Process in respect of M/s. UIC Udyog Ltd. 1. Brief averments in the application for the consideration of the points for determination are the following:- (a) The applicant is engaged in the business of manufacturing and supplying of all pre-stressed concrete Sleepers. The applicant issued various purchase orders on the corporate debtor for supply of HTs wire to its sleeper manufacturing unit at Mirza, State of Assam from time to time. But the corporate debtor made short supplies in respect of purchase orders placed by the operational creditor in the financial year 2014-15 though after receipt of advance paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Surodip Mukherjee has been given or produced. The application is incomplete for want of affidavit u/s. 9(3)(b) and 9(3)(c) of the I B Code. Section 9(3)(c) certificate is prepared by the applicant itself and it is a self made certificate. The address of the operational creditor also not given in the Form. The authorisation produced along with the application does not provide any authorisation in favour of Ms. Sanchari Chakraborty, Advocate. (b) The corporate debtor further contended that the there was no power of attorney executed despite passing of the resolution so as to prove the authorisation. Copy of the Article of Association and the Certificate of Incorporation produced for proving the registration of the corporate debtor is of a company not belonging to the existing corporate debtor and it belongs to UIC Wires Limited. (c) The contention of the applicant is that there was no reply to the demand notice issued by the applicant is incorrect. On the other hand the corporate debtor sent a reply in response to the demand notice denying the claim and raising existence of disputes. A copy of the reply is produced along with the reply affidavit marked as Annexure A . So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked as Annexure C to rejoinder. It is not correct to say that any amount is due to the corporate debtor from the applicant as is claimed by the corporate debtor. It is contended by the applicant that the claim is the legitimate claim as against the corporate debtor and the applicant is an operational creditor and the amount due is an operational debt and, therefore, liable to be allowed. 4. Heard the Ld. Counsel for the applicant and the Ld. Pr. CS for the respondent. Perused the records and the citations referred to by the Pr. CS. 5. M/s. Daya Engineering Works Pvt. Ltd., a company dealing with business of manufacturing and supplying of pre-stressed concrete Sleepers admittedly issued Purchase Orders annexed as Annexure C at page nos. 82 and 83. ( Purchase orders annexed as Annexure C at page nos. 84 and 85 seems to be not the Purchase Orders issued by the applicant to the corporate debtor but issued by some other company. That too according to the applicant annexed mistakenly). 6. So evidently the applicant is a purchaser of goods who purchased goods from the respondent, who is allegedly a corporate debtor. Admittedly, on the basis of the Purchase Orders raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondent. On the other hand the applicant produced copies of Form C (Annexure A ) served on the respondent along with rejoinder. So the contention that there exist a pre-existing dispute regarding the claim of refund of the balance amount already received by the respondent for supply of goods is found devoid of any merit. Even if there exist a dispute that was a dispute raised subsequent to the receipt of the demand notice. So it cannot be ruled out that the dispute was raised for the sake of avoiding resolution to be initiated by the applicant under section 9 of the I B Code. The dispute if any is not a bona fide dispute. 9. So the next question is whether the applicant qualifies as an operational creditor and if the payment owed to the applicant is an operational debt? The respondent in the reply affidavit admitted retaining the balance amount as claimed by the applicant. Paragraph No. 2 in the reply read as follows:- The amount retained has been towards non-submission of 'C' forms amounting to ₹ 69,39,694/- and late submission of 'C' forms amounting to ₹ 5,37,13,179/-for which our company had to bear tax amounting to ₹ 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of the applicant does not fall with in the definition of operational debt and hence the applicant is not an operational creditor as alleged. Much argued on the side of the respondent that the applicant who signed the application had no authority on the date of filing the application and the authorisation produced along with rejoinder is a deliberate attempt to mislead the facts regarding resolution not taken on the date as shown in the resolution annexed with the original application. Truly on a comparison of the copy of the resolution annexed with the application (Annexure B) and the resolution annexed with the rejoinder there are misleading inconsistent facts regarding the authorisation and execution of power of attorney. However, being found that this application is not maintainable as the applicant is not an operational creditor and this application is liable to be dismissed we are not go in deep of the allegation in respect of the production of resolution in an attempt to prove authorisation given to the signatory in the application. In view of the above said discussion we have no hesitation in holding that the application is not maintainable under section 9 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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