TMI Blog2019 (1) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... Interim Resolution Professional in case the petition is admitted. The petition is admitted - The matter be now listed on 21.12.2018 for passing formal order of declaring moratorium and for appointment of the Interim Resolution Professional. - CP (IB) No. 80/Chd/Hry/2018 - - - Dated:- 18-12-2018 - MR. R. P. NAGRATH, MEMBER (JUDICIAL) AND MR. PRADEEP R. SETHI, MEMBER (TECHNICAL) For The Petitioner : Mr. Sardavinder Goyal, Advocate, Mr. S. S. Brar, Advocate And Mr. N. K. Setia, Advocate For The Respondent : Mr. Yash Pal Gupta, Advocate Judgment (Oral) Per: R. P. Nagrath, Member (Judicial): This petition has been filed by M/s Tata Blue Scope Steel Limited, a company incorporated under the Companies Act, 1956, under Section 9 of the Insolvency Bankruptcy Code, 2016 (for short to be referred here-in-after as the Code) for initiating insolvency resolution process against M/s Richa Industries Limited, the respondent-corporate debtor. The petitioner company was incorporated as a company on 09. 02. 2005 as per the master data of the company at Annexure 14-D. The petitioner company filed the resolution of the Board of Directors of the company dated 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract dated 28. 02. 2017 Annexure-2 was entered into between the parties. The respondent made the payment of ₹14,42,843. 36 for executing the supplies. A Letter of Credit dated 27. 04. 2017 was opened through the Corporation Bank in favour of the operational creditor and Letter of Credit along with its amendment is attached as Annexure 3 and 3A respectively. 6. The petitioner-operational creditor then issued the Commercial Invoice dated 29.04.2017 to the corporate debtor bearing No. 274 for part delivery of goods and against this invoice, the goods worth of ₹16,77,132. 86 were supplied and Bill of Exchange dated 29. 04. 2017 for a sum of ₹7,17,598. 55 was issued. It was agreed that there was a period of 30 days for honouring the Letter of Credit with interest @ 13. 5% of 30 days, after deducting the advance amount. The Commercial Invoice and Bill of Exchange are at Annexure 4 and 5 respectively (at page 46 to 49 of the paper book). 7. Further on 05. 05. 2017, a Commercial Invoice bearing No. 284 was issued to the corporate debtor for delivery of the remaining goods as per the Sale Contract. The supply of material worth ₹34,44,542. 86 was made and Bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count in respect of the respondent-corporate debtor for the period from 01. 04. 2017 to 28. 02. 2018 where the outstanding balance is shown to be ₹26,05,066. 29 and the amount of interest is ₹3,34,242. 06. Copy of the Ledger Account is at Annexure 13 (at page 62 of the paper book). 12. Thereupon the petitioner sent the demand notice to the respondent-corporate debtor in Form 3 as prescribed in Rule 5(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. That notice is dated 15. 01. 2018, which is at Annexure 1A. The respondent sent reply dated 21. 01. 2018 to the demand notice, which is annexed at Annexure 1B. 13. Notice of this petition was issued to the respondentcorporate debtor to show cause as to why the petition be not admitted. The respondent has filed the written statement vide diary No. 2168, dated 14. 06. 2018. The first objection was relating to the competency of the person, through whom, the petition was filed, but as already discussed above, this defect has since been removed. 14. With regard to the verification of the affidavit, there was some objection, but the learned counsel for the respondent submits that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because of unavoidable and unforeseen circumstances. The corporate debtor was working out to resolve the issue and assured that if the matter is not solved by 15of September from the bank side, the respondent would make the payment directly in the account of the petitioner. Even subsequent to that e-mail dated 27. 10. 2017 at Annexure 11, the respondent categorically stated that they will clear at least first Bill of Exchange by 3November and the second Bill of Exchange by November end. 21. It is pertinent to mention that the respondent-corporate debtor has not placed on record its own ledger account to contradict the entries made in the ledger account relied upon by the petitioner. Even the respondent has not pleaded that it raised any dispute about the defect in the quality of the material at any time before the demand notice was sent to the corporate debtor. The principle of law on the subject is well settled as held by the Hon ble Supreme Court of India in Mobilox Innovation Private Limited Vs . Kirusa Software Private Limited (2018) 1 SCC 353 Ltd . case in para 51 of the judgment, which reads as under: It is clear, therefore, that once the operational creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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