TMI Blog2019 (3) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... te debtor. Whether the applicant proved compliance of the requirement to be meted out u/s. 9(5) of the Code? - HELD THAT:- he applicant also succeeded in proving that the application filed is complete as per sub-section 2 of S.9 of the Code, that there is no payment of unpaid amount found liable to be paid by the Corporate Debtor, that the invoices and notice were delivered to the Corporate Debtor, that affidavit is filed in compliance of Section 9(3)(b) to the effect that there is no notice given by the Corporate Debtor relating to a dispute of the unpaid operational debt and that the bank statement copy is produced in compliance of S.9(3)(c). Since no resolution professional name was proposed, compliance of section 9(5)(i)(e) does not at all arise. The Application filed under Section 9 being proved to be complete, it is liable to be admitted. Taking judicial notice of delay in completing the resolution process by the IRP because of lack of adequate fund for meeting the initial expenses for initiating CIRP like publications in leading news papers etc. by the IRP. To overcome the said circumstances and to discourage IRP from spending the initial expenses from his or her own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but payment not made are produced and marked as Annexure B. 4. Despite repeated demands including demand letter dated 23/12/2015 to the Corporate Debtor, the Corporate Debtor has failed and neglected to pay the outstanding invoice amount. The Corporate Debtor did not send their reply to the letter dated 23/12/2015 also. Thereafter, a demand notice dated 15/03/2017 u/s. 8 of the I B Code was issued by the Operational Creditor demanding the invoice amount of ₹ 21,25,340/-. The said notice was replied by the Corporate Debtor on 10/04/2017 making untrue allegations. The demand notice dated 15/03/2017 was not proceeded with since due to inadvertence, it included the claim of the Corporate Debtor's sister concern, viz., Amrit Hatcheries Private Limited. Copies of demand notice dated 15/03/2017 and reply to the demand notice dated 10/04/2017 are annexed with the application and marked as Annexure - D. A copy of Ledger extract indicating the invoice amount is annexed with the application and marked as Annexure E. 5. Since the Corporate Debtor did not pay the outstanding dues as per the invoices, the Operational Creditor has issued a notice dated 01/11/2017 u/s. 8 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icated, concocted or wrongly brought into existence for the purpose of instituting false and fabricated claims. The Invoices did not contain Corporate Debtor's acknowledgment or receipt of the invoices. It contained no signature of the authorised signatory of the Corporate Debtor though invoices were not delivered to the Corporate Debtor as alleged. The purported challan in order to demonstrate the purported delivery of materials to the Corporate Debtor as alleged also does not contain any stamp of the Corporate Debtor acknowledging receipt and does not contain any signature of the authorised employee of the Corporate Debtor. The purported invoices have not at all referred to any mention of any challan giving rise to the said invoices, therefore, cannot be relied upon to prove delivery. Moreover, the challan cannot be related to the invoices. The quantity of materials allegedly supplied to the Corporate Debtor referred to in the invoices also varies. Therefore, the challan is a fabricated document which does not at all prove delivery of goods as alleged. 11. The Operational Creditor never demanded the alleged amount as the outstanding amount due to the Operational Creditor t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be corroborated from the way bills issued by the Corporate Debtor. It is also incorrect that the challan produced along with the Application is a fabricated one but due to inadvertence, the copy of the challan produced along with the Application dated 11-10-2015 as has been annexed is pertaining to previous transaction with the Corporate Debtor. The copy of the challan in respect of the transaction as per the invoices referred to in the Application is produced along with the rejoinder and marked as Annexure A . Subsequent to disclosing the transaction related to the goods referred to the invoices are given in the challan. The vehicle number through which the goods were transported are one among the details which would corroborate the transportation of the goods to the Corporate Debtor as per the invoices issued and delivered to the Corporate Debtor by the Operational Creditor. The copies of the E-way bills downloaded from the Government of Andhra Pradesh Dept. Website are produced and marked as Exhibit B . The Corporate Debtor has never disputed the receipt of the goods and cannot, by way of an after thought, deny the same. It is incorrect to say that there was no demand prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the alleged Corporate Debtor. The Operational Creditor failed in proving delivery of the goods as per the challan allegedly issued by the Operational Creditor. The tax invoices produced along with the Application do not bear any signature or seal of the Corporate Debtor. There is nothing to demonstrate that tax invoices were ever raised upon or received by the alleged Corporate Debtor. The notice purportedly to be addressed to Amrit Group of Companies is a notice not received by the Corporate Debtor. The letter addressed to Amrit Group of Companies cannot consequently be deemed to be a notice addressed to the Corporate Debtor. The Operational Creditor has claimed a sum of ₹ 54,78,663/- as per the letter referred to at page 21 of the Application which is completely at variance with the claim of the Corporate Debtor made in the present Company Petition being ₹ 19,57,205/-. The notice dated 15-03-2017 has been issued by the Operational Creditor demanding ₹ 40,62,283/-. On the other hand, the purported claim of the Operational Creditor is confined to ₹ 19,57,205/-. The Corporate Debtor has duly replied to the said notice dated 15-03-2017. To the demand noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in reply in the instant proceedings. The receipt of goods is admitted time and again by the Corporate Debtor and the Corporate Debtor is estopped from contending otherwise. The Corporate Debtor has specifically admitted the receipt of the goods from the Operational Creditor in a Writ Petition filed before the Hon'ble High Court at Hyderabad amounting to ₹ 1,02,72,490/-and that a sum of ₹ 54,54,660/- is outstanding. Though the challans annexed with the application at page 18 have been mistakenly annexed instead of annexing challans annexed as Annexure A filed along with the rejoinder. The Corporate Debtor has admittedly failed to pay the amount payable upon supply of goods referred to in the challans. It is incorrect to say that the Operational Creditor has not raised the invoices or that the same was not received by the Corporate Debtor. It is also incorrect to say that no demand has been made prior to the issuance of the demand notice. The claim of ₹ 54,78,663/- truly included the claim of the Operational Creditor in respect of the goods supplied to both the Group Companies of the Corporate Debtor. ₹ 35,21,638/- is due from Amrit Hatcheries Limited and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the Corporate Debtor). 22. This is a case in which the Operational Creditor has preferred a claim of ₹ 19,57,025/- (Rupees Nineteen Lakhs Fifty Seven Thousand and Twenty Five only) along with interest @ 24% per annum on account of failure of payment of the amount due for the supply of Agro Fat Li Regular to the Corporate Debtor as per the Invoice Nos. AP/OIL/MAY/494 and SI/KB/000212 dated 30-May-2015 23-Jun-2015 for ₹ 8,84,570/- and ₹ 10,72,455/- respectively. The Operational Creditor alleged that the goods referred to as per the Invoices were delivered to the Corporate Debtor and to prove the delivery produced copy of transport challan, Annexure A annexed to the rejoinder and copies of e-way bill issued by the C.T. Dept., Govt, of Andhra Pradesh for proving transport of goods referred to in the Invoices. The Ld. Counsel appearing for the Operational Creditor submits that delivery of the goods supplied to the Corporate Debtor has been admitted by the Corporate Debtor in the reply affidavit filed by the Corporate Debtor, in the reply to the demand notice issued to the Corporate Debtor dated 15/03/2017 and in the Writ Petition filed by the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, the Corporate Debtor has not chosen to file any reply. But filed a copy of reply notice purportedly issued on 05.02.2018 i.e. after filing reply affidavit along with supplementary reply affidavit filed by the Corporate Debtor. The Corporate Debtor was granted leave to file supplementary reply affidavit because the Operational Creditor has produced Transport Challans, E-Way Bills, Copy of FIR, copy of Writ petition, Invoices related to admitted receipt of goods and payment of invoice amount and E-Way Bill to prove the delivery of goods in respect of the invoices for which payment was received by the Operational Creditor. The Corporate Debtor is seen exceeding its authority without limiting its contentions to the documents brought in on the side of the Operational Creditor by way of Rejoinder and raised contrary contentions already raised in the reply affidavit and produced copy of reply notice purportedly issued to the operational Creditor. It is in the above said back ground let me see whether the Operational Creditor has succeeded in proving delivery of invoices and goods and whether the amount in demand is legally due to the Operational Creditor. 24. It has come out in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B Code. 27. Ld. Sr. Counsel for the Corporate Debtor fairly admits raising of inconsistent contentions by the Corporate Debtor and confined to stress his arguments mainly challenging lack of evidence proving receipt of the Invoices and goods by the Corporate Debtor. He was also fair enough to admit that there was business conduct with the Operational Creditor and the terms of understanding for supply of goods was oral. Even in the supplementary reply affidavit the corporate debtor has not raised a contention that the invoices and challan allegedly issued by the Operational creditor was not received by the Corporate Debtor but contended that it contains no signature or stamps of the Corporate Debtor and therefore failed to prove the delivery of the goods as per the challan. The above said dispute regarding non delivery of goods has been raised at a belated stage. It is a fact indicating the falsity of the case attempted to be established on the side of the Corporate Debtor. 28. Ld. Sr. Counsel further would submit that the Operational Creditor cannot rely upon the contention raised by the Corporate Debtor in its reply notice dated 10.04.2017 and the Writ Petition filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.04.2017 also was also given up at the time of argument. Without giving up that contention, the Ld. Sr. Counsel cannot defend the case stressing non delivery of goods. Hence giving up contrary contentions at the time of argument by limiting the contention of non delivery of goods belatedly taken can only be inferred as an after thought to defend for the sake of defence to try its luck to win the case. We are on summary trial in a case of this nature. I am not bound to have an elaborate trial as in a civil case and permit the defending lawyer to give up inconsistent contentions which they are entitled to take in its defence in civil cases and to give up any contentions adverse to it at the time of leading evidence by confining to one contention favorable to it. So I cannot ignore the inconsistent contentions and the contentions amounting to admitting the receipt of goods referred to in the invoices issued to the corporate debtor which in fact are sufficient enough to prove the case of the Operational Creditor that the goods referred to in the invoices were delivered to the Corporate Debtor as alleged by the Operational Creditor. 31. The Operational Creditor on the other hand pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the Operational Creditor. The Operational Creditor also produced copy of invoice Exhibit D in the rejoinder which is not under challenge. It also does not contain the signature affixed at the instance of the corporate Debtor so as to prove that the invoices were originally received by the Corporate Debtor. So, on a fair comparison of undisputed Tax invoice which was produced on the side of the Applicant of which the amount has been evidently paid by the Corporate Debtor enable me to believe the case of the Operational Creditor that even if there is no signature affixed on the side of the Corporate Debtor in the invoices and in the Challan, in the ordinary course of business in between the parties the corporate debtor was not in the habit of putting signature or affix its seal to prove acknowledgment of receipt of the goods. So lack of signature in the invoices and in the Challan is not fatal in the peculiar nature of business transaction brought to my notice in the case in hand. More over the Corporate Debtor has not disputed the receipt of the goods in the reply notice dated 10/04/2017. In the light of the above said discussion it appears to me that the contention that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before me for my reference. A reference to both Acts, I am satisfied that the goods in question involved in the case in hand is an exempted goods which does not come under the purview of the said Act and hence non-production of C-Form does not at all disprove the completion of transportation of goods evidently transported by the Operational creditor. 35. The Ld. Counsel for the Operational Creditor also attempted to substantiate her contention that there was no challenge against the non-receipt of the invoices referred to in the Application even in the writ appeal filed by the Corporate Debtor before the Hon'ble High Court at Hyderabad. A copy of FIR raised against the Director of the Corporate Debtor and its group Companies has been produced along with the rejoinder and marked as Annexure C and the copy of the writ Petition is also produced along with the Annexure C . The Applicant has filed criminal complaint against the Corporate Debtor demanding the amount due from the corporate debtor and Amrit Hatcheries totaling ₹ 55,78,663/-. The Operational Creditor alleged in the complaint that the cheque issued by the Corporate Debtor for repayment of the said amount w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution professional name was proposed, Mr. Ajay Kumar, Registration No. IBBI/IPA-002/IP-N00354/2017-2018/11004, E-mail ID: akumarassociate@yahoo.co.in. Mobile No. (0) 94318 00678 is appointed subject to submitting form 2 within one week of the receipt of the order. 39. I am taking judicial notice of delay in completing the resolution process by the IRP because of lack of adequate fund for meeting the initial expenses for initiating CIRP like publications in leading news papers etc. by the IRP. To overcome the said circumstances and to discourage IRP from spending the initial expenses from his or her own pocket, it appears to me that it is fair and just to direct the Applicant/Operational Creditor to deposit ₹ 2,00,000/- (Two lakhs) for the initial expenses to be spent by the IRP. It is to be reimbursed to the applicant by the CoC after its constitution and shall form part of the resolution cost. Accordingly, the applicant is to be directed to deposit Rs. Two Lakh in the escrow account of NCLT Kolkata Bench to be maintained in SBI Branch, Kolkata. 40. In the result the application is admitted upon the following orders: ORDER (i) The application filed by the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order for liquidation of the corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. (ix) Necessary public announcement as per Section 15 of the IBC, 2016 may be made. (x) Mr. Ajay Kumar, an Insolvency Professional registered with the Indian Institute of Insolvency Professionals of ICSI having Registration No. IBBI/IPA-002/IP-N00354/2017-2018/11004, E-mail ID: akumarassociate@yahoo.co.in, Mobile No. (0) 94318 00678 is appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan. (xi) The Interim Resolution Professional should convene a meeting of the Committee of Creditors and submit the resolution passed by the Committee of Creditors and shall identify the prospective Resolution Applicant within 105 days from the insolvency commencement date. (xii) The Applicant Operational Creditor is directed to deposit ₹ 200,000 (Two Lakh) for meeting initial expenses by the IRP in the escrow account of NCLT Kolkata Bench, maintained in SBI, Branch, Kolkata with in one week of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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