TMI Blog2019 (3) TMI 1285X X X X Extracts X X X X X X X X Extracts X X X X ..... al authorities and same does not stand rebutted. We are therefore of the firm view that the demand notice was duly delivered to the respondent-corporate debtor at the registered address. Petition barred by limitation - HELD THAT:- There is existence of dispute between the parties and that the amount claimed to be in default was not due. We have already held that the demand notice was duly served upon the respondent-corporate debtor on 03.01.2018 but no reply thereto was sent. The respondent-corporate debtor has rather denied the receipt of the demand notice on the plea of change of address and the said plea has not been accepted. It is not the version of the respondentcorporate debtor that any time before the institution of this petition or service of the demand notice, the respondent-corporate debtor sent any communication to the petitioner-operational creditor raising the dispute which has now been attempted in the reply. There is no communication by the respondent that the payment of ₹22,50,000/- was towards the full and final settlement of the claim against the corporate debtor. If that be the situation there was no occasion for the respondent-corporate debtor in de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and Bankruptcy (Application to Adjudicating Authority) Rules 2016 (for brevity the Rules ). The petitioner-company passed a Resolution dated 27.03.2018 (Annexure-6) authorising Mr. Mohit Kumar Manglik to sign and verify the petition under Section 9 of the Code and to do all the necessary acts in the progress of the case. There is affidavit of Mr. Mohit Kumar Manglik aforesaid in support of the contents of the application. 2. The respondent-company was incorporated on 01.03.1996 under the Companies Act, 1956 with authorised share capital of ₹50,00,000/- only and paid up share capital of ₹25,04,000/-. It has its registered office at Ludhiana in the State of Punjab and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 3. The facts of the case, briefly stated, are that the petitioneroperational creditor is carrying on the business of Polyester Staple Fiber (PSF) and the respondent-corporate debtor was carrying on the trading business of Fiber and Yarn in the State of Punjab. The respondent-corporate debtor approached the petitioner-operational creditor to act as consignment agent for the sale of PSF in the State of Punjab. The partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is at page 39 of the paper book. The demand notice was sent by speed post (Annexure-1) to the respondentcorporate debtor and the same was delivered as per the tracking report on 03.01.2018. The postal receipts and tracking report are part of the document Anneuxre-1 at pages 37 38 of the paper book. 6. It is stated that the respondent-corporate debtor has neither replied to the demand notice nor made the payment of outstanding amount nor even raised any dispute before the issuance of the demand notice. Before that however the respondent-corporate debtor issued 4 cheques in favour of the petitioner-operational creditor each of amount of ₹10,00,000/-. These cheques are dated 07.09.2014, 12.09.2014, 16.09.2014 and 20.09.2014. Three of the cheques were presented for payment but the cheques bounced. Copies of the cheques with dishonour memos are attached from pages 369 to 372 of the paper book out of which last cheque at page 373 was yet to be presented. The respondent-corporate debtor then requested the petitioner-operational creditor not to present the fourth cheque in the bank because of the deficiency of the funds and assured to make payment soon. Despite communication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the instant petition is barred by limitation as the date of default as stated by the petitioner-operational creditor is 10.07.2014 and the instant petition has been filed on 08.05.2018 much after the expiry of period of 3 years. 12. On merits it is admitted that there were business dealings between the parties, but it is denied that the respondent-corporate debtor has failed to make payment of the material supplied by the petitioner-operational creditor. The execution of the Consignment Agreement dated 01.02.2014 is also admitted. 13. The petitioner-operational creditor has also filed the rejoinder reiterating the stand taken in the application and denying the contents of the reply. It is stated that the demand notice as per the tracking report at page 38 of the petition was delivered on 03.01.2018, the respondent-corporate debtor with some ulterior motive changed the registered office address on 12.01.2018 to avoid any consequences of non-payment of the operational debt, after receipt of the demand notice. 14. In support of the above contention, copy of Form INC-22 regarding change of the address filed with the Registrar of Companies is attached as Annexure-A with the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r shared the copy of the ledger account of M/s Universal Woollen Mills for the period from 01.04.2014 to 31.03.2015 which was duly confirmed by the authorised signatory of M/s Universal Woollen Mills at the year end. The statement of account of M/s Universal Woollen Mills is at Annexure-G of the rejoinder. Therefore, the defence plea regarding full and final settlement of the accounts by way of issuance of aforesaid 4 cheques is denied as incorrect. If issuance of the 4 cheques, last of which dated 12.03.2015 was towards the full and final settlement of the accounts, there was no question of the respondent-corporate debtor for paying the amount of ₹2,00,000/- by RTGS transfer in the account of the petitioner-operational creditor on 04.05.2015. It is also alleged that the filing of the criminal complaint has no relevance in the matter. 17. The respondent-corporate debtor wanted to file the sur-rejoinder but that prayer was not accepted with the observations made in the order dated 28.11.2018 that if fresh case has been pleaded that would not be considered on merits, while deciding the case. 18. We have heard the learned counsel for the parties and carefully perused the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The crucial issue raised during arguments was that there is existence of dispute between the parties and that the amount claimed to be in default was not due. We have already held that the demand notice was duly served upon the respondent-corporate debtor on 03.01.2018 but no reply thereto was sent. The respondent-corporate debtor has rather denied the receipt of the demand notice on the plea of change of address and the said plea has not been accepted. It is not the version of the respondentcorporate debtor that any time before the institution of this petition or service of the demand notice, the respondent-corporate debtor sent any communication to the petitioner-operational creditor raising the dispute which has now been attempted in the reply. 22. The controversy therefore has to be dealt with on the basis of the well settled principle on the subject as laid down by the Hon ble Supreme Court in Mobilox Innovations Private Limited Versus Kirusa Software Private Limited (2018), 1 SCC 353 held as under:- 51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te any time before the filing of the reply is satisfactorily and firmly answered in the rejoinder filed by the petitioner-operational creditor. It is stated that the petitioner-operational creditor has been in the same line of business with the sister concern of the respondent-company namely M/s Universal Woollen Mills, Ludhiana. The amount of the 4 cheques to the tune of ₹22,50,000/- was credited in the books of account of the petitioneroperational creditor qua M/s Universal Woollen Mills. This information was given to the operational creditor and further confirmed at the end of March 2015 and the confirmation certificate issued by the authorised signatory of M/s Universal Woollen Mills, Ludhiana is attached as Annexure-G with the rejoinder. The entries of these 4 cheques are made in respect of the account of M/s Universal Woollen Mills on the relevant dates as at page 59 of the rejoinder which is signed by the petitioner-operational creditor as well as by the authorised signatory of M/s Universal Woollen Mills aforesaid. M/s Universal Woollen Mills is a partnership firm and one of the partners is director of the respondent-company. Both the partnership firm and the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 Securitization 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. 30. It is further directed that the supply of essential goods or services to the corporate debtor as may be specified, shall not be terminated or suspended or interrupted during moratorium period. The provisions of Section 14(3) shall however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator and to a surety in a contract of guarantee to a corporate debtor. 31. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall stand suspended and the management of the affairs shall vest with the Interim Resolution Professional and the officers and the managers of the Corporate Debtor shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the Code , including taking control and custody of the assets over which the Corporate Debtor has ownership rights recorded in the balance sheet of the Corporate Debtor etc. as provided in Section 18 (1) (f) of the Code . The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the Corporate Debtor ; iii) The Interim Resolution Professional shall strictly act in accordance with the Code , all the rules framed thereunder by the Board or the Central Government and in accordance with the Code of Conduct governing his profession and as an Insolvency Professional with high standards of ethics and moral; iv) The Interim Resolution Professional shall cause a public announcemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
