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TMI Blog2019 (5) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 27,79,59,587.21 as outstanding against the Corporate Debtor as per Ledger Account for the period 25.02.2015 to 20.03.2018 in respect of mobile handset, and from 01.04.2015 to 20.03.2018 in respect of accessories, which the Corporate Debtor has failed to pay. 4. The brief facts of the case are that the Operational Creditor viz., M/s. Optiemus Infracom Limited is the distributor of mobile handsets of Samsung brand and all mobile handsets supplied to the Corporate Debtor viz., Indus Mobile Distribution Private Limited were of the Samsung brand. 5. In support of the Application, the Operational Creditor has raised Invoices in relation to the mobile handsets supplied which are placed at pages 44 to 668 in Volumes 2 and 3 of the typed set filed with the Application and raised Invoices in relation to the accessories supplied which are placed at pages 671 to 720 in Volume 3 of the typed set filed with the Application. The details of which are given at page 16 of the Application. 6. It has been submitted by the Learned Counsel for the Operational Creditor that in the normal course of business the Operational Creditor has supplied the mobile handsets and accessories to the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2015, an amount of Rs. 4,48,983.084 is the outstanding being confirmed by the Corporate Debtor which bears the signature of the Authorized Signatory on the Letter Head. 10. The Learned Counsel for the Operational Creditor has also referred to a cheque dated 01.11.2017 for an amount of Rs. 27,79,59,587/- which got bounced vide Cheque Return Memo placed at Page 725 of Volume-3 of the typed set filed with the Application. The above Return Memo has been issued by M/s. Induslnd Bank dated 31.01.2018 with an endorsement "FUNDS INSUFFICIENT". 11. The Operational Creditor has issued Notice under Section 8 in Form-3 to the Corporate Debtor demanding the outstanding amount on 21.03.2018, copy of which is placed at Pages 727 to 732 of Volume-Ill of the typed set filed with the Application. The Notice has been delivered at the address of the Corporate Debtor as reflects from Page 733 of Volume-Ill of the typed set filed with the Application, which is the address provided in the Master Data of the MCA, copy of Company Master Data is placed at Page 28 of Volume-2 of the typed set filed with the Application. The same address is being reflected in the confirmation letter dated 09.10.2015 place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Operational Creditor and the same has become wholly owned subsidiary of the Operational Creditor. As per the said Deed of Assignment, all Intellectual Property Rights in Trade Mark were transferred to the sister concern of the Operational Creditor against the consideration of Rs. 4 Crores. Copy of the Deed of Assignment is placed at pages 1 to 24 of Volume-I of the typed set filed with the Counter. 16. Learned Counsel for the Corporate Debtor has referred to a draft agreement viz., Mutual Tripartite Agreement placed at pages 25 to 27 of Volume -I of the typed set filed with the Counter wherein it has been agreed among Corporate Debtor, Operational Creditor and M/s. MPS Telecom Retail Private Limited, which is stated to be a sister concern of the Operational Creditor, to have an adjustment of Rs. 4 Crores out of Rs. 5 Crores of the amount of loan which are due and payable by the Corporate Debtor to the Operational Creditor and the consideration which was to be paid by M/s. MPS Telecom Retail Private Limited has been got adjusted to the extent of Rs. 4 Crores out of the liability of the Corporate Debtor. Copy of the draft Mutual Tripartite Agreement is placed at pages 25 to 27 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor is not the privy. 18. Learned Counsel for the Corporate Debtor again tried to convince this Authority that the Operational Creditor vide e-mail communication dated 07.02.2015 has written to the Corporate Debtor about filling up the details of parties of Corporate Debtor and execute the agreement by Monday to which a reply was given by the Corporate Debtor attaching the final draft that they agreed. The e-mail communication is placed at page 1 of Volume -II of the typed set filed with the Counter. The Learned Counsel is indicating towards the intention of the parties for the purpose of signing the agreement, the text of which is placed at pages 2 to 25 of Volume -II of the typed set filed with the Counter, but, that agreement has never been executed among the parties. 19. It is stated that the person to whom the e-mail dated 07.02.2015 was sent and who has given response to the said e-mail is the same person who has signed the Application on behalf of the Operational Creditor and issued notice under Section 8 of the I&B Code, 2016. Mr. CS Vikas is stated to be one of the Directors of M/s. MPS Telecom Retail Private Limited, which is a sister concern/wholly owned subsidia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (ii) Sunil Sanghavi v. Cytech Coatings Pvt. Ltd., passed in Company Appeal (AT) (Insolvency) No. 635/2018,, wherein it has been held that the service of notice under Section 8 is not a mere formality but mandate of law that such notice is actually served on the 'Corporate Debtor' who may act accordingly. 24. The Learned Counsel for the Corporate Debtor has further submitted that the Operational Creditor is relying upon the document dated 09.10.2015 placed at page 723 of Volume-Ill of the typed set filed by the Operational Creditor which has been signed by an employee of M/s. MPS Telecom Retail Private as reflects at page 90 of Volume -I of the typed set of documents filed with the Counter, who has joined the said Company on 01.08.2015. However, the Learned Counsel the Corporate Debtor did not show any of the Order by which Mr. Josheel Mohan has been discharged from the employment of the Corporate Debtor. 25. The Learned Counsel for the Corporate Debtor has also referred to the Cheque dated 01.11.2017, copy of which is placed at page 724 of Volume -III of the typed set of documents filed with the Application which is stated to have been misused by the Operational Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Meeting of the Company held on 29.09.2014, the members have approved the appointment of M/s. Brahmayya & Co., Chartered Accountants as the statutory auditors for a period of three years commencing from the conclusion of the 8th Annual General Meeting till the conclusion of the 11th Annual General Meeting, subject to the ratification by the shareholders. The Learned Counsel for the Operational Creditor has also supported the same with the Independent Auditors' Report submitted on behalf of the Corporate Debtor placed at pages 20 and 21 of the additional typed set filed by the Operational Creditor, which has been signed on 23.09.2015 by one Mr. K. Jitendra Kumar, partner on behalf of the said Brahmayya & Co., Chartered Accountants, the same person has signed the certificate reproduced herein above. 29. The Corporate Debtor has filed the counter to MA/199/2019 filed by the Operational Creditor by which a certificate dated 05.02.2016 issued by the Auditor of the Corporate Debtor has been placed on record to certify that as per the Ledger Balance a sum of Rs. 27,08,58,520/- is owed to the Operational Creditor. The Counsel for the Corporate Debtor has submitted that the Certificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The Learned Counsel for the Corporate Debtor has again raised objection that the signatory of Cheque was not authorized to issue a Cheque for more than the financial limit of Rs. 25 Lakhs per transaction pertaining to the account Number 201000517060 opened with the Induslnd Bank. He has supported his submission with the Resolution passed in the meeting of the Board of Directors of the Corporate Debtor held on 25.11.2016 to which the Learned Counsel for the Operational Creditor has again reiterated that the Cheque issued by the Corporate Debtor on 01.11.2017 for an amount of Rs. 27,79,59,587/- placed at Page No.724 of Volume 3 of the typed set filed with the Application was returned by the Bank with the endorsement 'Funds Insufficient'. The Cheque Return Memo issued by the Induslnd Bank is placed at Pages 725 and 726 of Volume 3 of the typed set filed with the Application. But, this Authority has noted that the Bank has not returned the Cheque on the basis of the 'financial limit', but for 'Insufficient funds'. However, the Cheque issued by the Corporate Debtor is admissible document which supports the claim of the Operational Creditor. Therefore, the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 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. 35. The supply of essential goods or services of the Corporate Debtor shall not be terminated or suspended or interrupted during moratorium period. The provisions of sub-section (1) of Section 14 shall not apply to such transactions, as notified by the Central Government. 36. The Operational Creditor has not proposed the name of IRP, therefore, Mr. B. Ramana Kumar is appointed as IRP, whose name appears in the Panel of Insolvency Professionals recommended by the IBBI. There is no disciplinary proceedings pending against the IRP and his name is reflected in IBBI website. The IRP shall file the declaration disclosure statement in the Registry of NCLT, Chennai Bench, within two working days from the date of the receipt of this Order. The IRP is directed to take charge of the Corporate Debtor's management immediately. The IRP is also directed to cause public announcement as prescribed under Section 15 of the I&B Code, 2016, within three days from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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