TMI Blog2018 (7) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... afterthought by the respondents to remove evidence of the Trades Payable of Mahavir Traders in the respondents’ accounts. In view of the foregoing discussion, the respondent’s contention that the claim is time barred cannot be accepted. The petitioner, being an operational creditor, is not bound to propose the name of the Resolution Professional to be appointed as Interim Resolution Professional. The petitioner, however, has filed written communication in Form 2 (Annexure A-10 of application and Annexure A-2 of diary No. 2831 dated 11. 12. 2017) from Mr. Anjum Goyal, registered Resolution Professional having allotted Registration No. IBBI/IPA-002/IP-N00251/2017- 18/10765, giving all the necessary particulars as required in the form and that he is presently not serving as IRP/RP/Liquidator in any proceedings. It is also stated by him that there are no proceedings pending against him with the Insolvency and Bankruptcy Board of India (IBBI) or ICSI. Having perused the form, we find the same to be in order. We find that all the compliances have been made and the application is complete and the petition deserves to be admitted. - CP (IB) No.126/Chd/Pb/2017 - - - Dated:- 12-3-2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hdraw the petition with liberty to file fresh one on the same cause of action under the I B Code, 2016 or other appropriate law, if so advised. Copy of the order dated 10. 07. 2017 of this Tribunal is at Annexure A-13. 4. Before filing of this petition, the petitioner sent the demand notice dated 11. 08. 2017 Annexure A-1. Along with this demand notice sent in Form No. 3 and 4 as prescribed in Rule 5 of the Rules, details of various invoices under which the goods were sent to the respondent, were also attached. The postal receipt regarding sending notice by speed post Annexure A-1 (colly) is at page 24 of the paper book. The petitioner has attached tracking report showing that the notice was delivered to the corporate debtor on 16. 08. 2017. Affidavit to the effect that neither any notice was given by the corporate debtor relating to the dispute of unpaid operational debt nor any payment was received by the operational creditor against the unpaid / outstanding amount, is stated to be at Annexure A2. A copy of certificate from the financial institution maintaining the account of the operational creditor confirming that there is no payment of an unpaid operational debt by the corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that the financial statement of the respondent as on 31. 03. 2016 placed on record by the petitioner has been made in connivance with the ex-employee of the respondent only with the aim of getting wrongful gain to the petitioner. It is stated that the present claim is totally time barred and the same is liable to be dismissed. 8. We have heard the learned counsel for the parties and have perused the record. 9. Learned counsel for the petitioner referred to the application under Rule 6 of the Rules as well as the affidavits of compliance filed by diary No. 2881 dated 11. 12. 2017 and 2908 dated 13. 12. 2017. Learned counsel for the petitioner contended that the petitioner has complied with all the requirements of Sections 8 and 9 of the Code, read with the Rules. The learned counsel also referred to Annexure A-11 of the petition which is a copy of the financial statement of the corporate debtor for the financial year ending 31. 03. 2016 obtained from the portal of Ministry of Corporate Affairs in which the amount of trade payables to the tune of ₹8,40,14,804 is shown in the balance sheet as at March, 2016. The learned counsel further referred to the breakup of the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for initiating a corporate insolvency resolution process. ( 2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. ( 3) The operational creditor shall, along with the application furnish- ( a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; ( b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; ( c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor; and ( d) such other information as may be specified. ( 4) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional. ( 5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- ( i) admit the application and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexure A-2 stating that the petitioner did not receive any notice from the corporate debtor relating to a dispute of the unpaid operational debt nor it has received any payment against the outstanding amount in order to comply with the requirement of Section 9(3)(b) of the Code. 16. The petition before the Tribunal was filed on 15. 11. 2017 i. e. much after the expiry of the period of 10 days from the date of delivery of the demand notice. Certificates from the financial institutions i. e. HDFC Bank and Allahabad Bank have been filed at Annexure A-3 and A-4 vide diary No. 2881 dated 11. 12. 2017. HDFC Bank has certified that there are no credits from the corporate debtor since 24. 08. 2016. Allahabad Bank has certified that the petitioner s account with this Bank was closed on 31. 05. 2017. It is also stated that no amount has been credited in the account of the petitioner at the instance of the respondent from 01. 01. 2016 till the date of closure of the account. The invoices relate to supply of polyester cotton yarn and therefore, the petitioner is an operational creditor and moreover, this is not disputed by the respondent. Therefore, the requirements of Section 9 (1) to (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e already sent to the petitioner. These letters make reference to Invoice No. V-129 dated 06. 09. 2008 for ₹3,47,281/- and Invoice No. V-065 dated 21. 04. 2009 for ₹. 4,11,946/- requesting the petitioner to produce proof of delivery of goods physically in order to settle the payment of the bills. 21. We are unable to accept the above contention which is patently based on the created documents which are not supported by any proof. The respondent has not filed copy of its record to show that entry of dispatch of these letters exists in the record of the respondent nor these letters bear the reference or dispatch numbers which are sufficient factors to outrightly reject these letters. 22. It was forcefully contended by learned counsel for the petitioner that these letters are apparently fake as the address of petitioner is mentioned as per present address, whereas in the bills/invoices in question of the year 2009 it was Guru Nanak Market, Hazuri Road, Ludhiana . The above contention make the submission of the petitioner forceful and strong. 23. It was contended by the respondent that the petitioner has not furnished any evidence of delivery of the goods to the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the invoices issued by the petitioner during the period 11. 06. 2008 to 21. 04. 2009 nor has the respondent contended/filed evidence that the Trades Payable of ₹8,98,285/- in the name of Mahavir Traders did not exist in the accounts of the petitioner since 2008-2009. In these circumstances, the acknowledgement of the debt is available in the accounts of the petitioner since 2008-09 upto 31. 03. 2016. As already discussed above, the respondent s contention that the financial statement of respondent placed on record by the petitioner has been made in connivance with the ex-employee of the respondent is not supported by any proof and moreover, the Balance Sheet as at March 2016 filed by the petitioner at Annexure A-11 of the application is signed by the Chartered Accountant as well as two Directors. Therefore, the respondent s explanation is found without any basis. 25. As discussed in the preceding para, the respondent has sought to rely upon the Balance Sheet as in March 2017 (Exh. R-3) and has stated that no dues to the petitioner are shown therein. However, the respondent has not filed on record any details to reconcile the account of the petitioner shown in the Balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor . 29. It is further directed that the supply of essential goods or services to the Corporate Debtor as may be specified, if continuing, shall not be terminated or suspended or interrupted during moratorium period. The provisions of sub-section (1) shall however not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. 30. The order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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