9911796707
TMI Blog2017 (8) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... om Hon'ble High Court of Bombay to this NCLT Bench, in pursuance of transfer Notification, this Petitioner filed Form 5 u/s.9 of the Insolvency & Bankruptcy Code, 2016, classifying itself as Operational Creditor for initiation of Insolvency Resolution process against this Corporate Debtor, hence this Petition. 2. The case of the Petitioner is the Petitioner is a Proprietary Concern supplying raw materials, in pursuance of it business, when Corporate Debtor approached this Creditor supply Stainless Steel raw materials as mentioned above, by carrying out the order of the debtor, the Creditor raised 13 invoices vide SAL/143 on 4.8.2012; SAL/144 on 4.8.2012, SAL/145 on 6.8.2012; SAL/155 on 16.8.2012, SAL/164, dated 24.8.2012; SAL/165, dated 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by this Corporate Debtor after 17.2.2015, the Petitioner issued notice u/s.434 of Companies Act, 1956. The Corporate Debtor made part payments from time to time aggregating to Rs. 13,70,600 against all the invoices raised as mentioned above, leaving a principal sum of Rs. 8,57,678 outstanding and the interest of Rs. 9,70,670.78 accrued at the rate of 24% p.a. remained due and payable by the Corporate Debtor. The Petitioner further stated that this Corporate Debtor kept pleading extension of time for payment owing to its financial difficulty. Since no payment in respect to the outstanding dues have come from the Corporate Debtor, this Petitioner finally gave notice to the Corporate Debtor to pay the Petitioner a sum of Rs. 18,28,348.78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor that the Debtor would make the payments to clear up the payments of invoices in chronological order of date of invoices raised by the Petitioner, if adjustments made according to the understanding between them, these payments should have been made against the invoices raised from 4.8.2012 to 16. 8.2012. The debtor says that if at all the adjustments have been made as mentioned in the Exhibit - A annexed to the reply filed by the Corporate Debtor, these part payments of Rs. 13,70,600 should have been made against other invoices raised from 4.8.2012 to 16.8.2012 leaving balance of Rs. 96,915 payable to the Petitioner, but not to the invoices raised from 20.4.2008 to 12.10.2012, this comes to Rs. 7,60,763. The defence set-up by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Creditor Counsel says section 60 of the Contract Act and Section 19 of Limitation Act are read together, it is evident the Creditor is at liberty to adjust the part payments in the way it suits to the Creditor against the debts payable by the Corporate Debtor unless and until an indication to which the payments is to be applied. The Corporate Debtor had occasion to have this say in respect to this liability - at the time reply notice was given u/s.434 of the Companies Act, 1956. In the notice u/s.434 of the Companies Act, 1956 itself, the Petitioner has categorically mentioned how much amount was to be paid by the Corporate Debtor, but at the point of time, this Corporate Debtor did not raise any objection saying that since there was an u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied by the Petitioner and thereafter defaulted in making full payments towards invoices raised by the Petitioner, this Bench of the view that the material available on record is enough to believe that debt is in existence and the debtor defaulted in making payment. To justify the payments adjusted against each of the invoices, the Petitioner has filed particulars of claim as on 18.3.2016 and computation thereof disclosing no debt is barred by Limitation and showed that the claim made by the Petitioner is inconsonance with the computation filed by the Petitioner herein. As to the principal amount shown as Rs. 22,32,678 in respect of the invoice amount in the notice given u/s.434 of the Companies Act, 1956, the Petitioner says that calculat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. ii) That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. iii) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. iv) That the order of moratorium shall have effect from 17.08.2017 till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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