TMI Blog2019 (7) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... r The Respondent : Mr Tabrez JUDGMENT Shri Pradeep R. Sethi, Member (T) The Present Application is filed under section 9 of Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC, 2016') read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') by Modi Distillery, Unit of Modi Industries Limited (for brevity 'Applicant') with a prayer to initiate the Corporate Insolvency process against Gagan Distillers and Beverages Private Limited (for brevity 'Corporate Debtor'). 2. The Applicant is a unit of Modi Industries Limited, duly incorporated under the Companies Act, 1956, having its registered office at P.O. Modinagar, Ghaziabad, U.P.- 201204 and is engaged in manufacturing of distillery products. The application is signed by Sh. Vijay Pal Singh authorized representative and he has also filed affidavit verifying the petition and has been authorized vide Board Resolution dated 01.03.2017 to initiate Corporate Insolvency process under IBC, 2016. 3. The Corporate Debtor is a private limited company inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or authorities as on day. 8. Vide order dated 27.08.2018 directions were issued for notice as to why the applications for initiating the CIRP should not be admitted against the corporate debtor. 9. The Corporate Debtor has filed a reply to the application contending that there is pre-existing dispute. It is contended that the respondent had given 3 post-dated cheques amounting to ₹ 19,21,480/- to the applicant for the purposes of payment qua the goods supplied by the applicant. And that, as per the agreements between the parties, these cheques were to be deposited by the applicant after due confirmation by the respondent on the final amount of goods supplied by the applicant. Four new undated cheques are stated to be issued and the respondent vide email dated 01.06.2018 had informed the applicant that the management of the respondent was not available to take a decision on the deposition of the cheques and requested to hold the cheques until the management gives the confirmation. However, the applicant vide email dated 05.06.2018 informed the respondent that it has sent the undated cheques to its accounts department and requested to see that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 19,11,023.48/- (Rupees Nineteen Lakh Eleven Thousand Twenty-Three Only) and interest thereon at the rate of 18 per cent per annum i.e. 4,54,247.66/- (Rupees Four Lakhs Fifty-Four Thousand and Two Hundred and Forty-Seven Rupees Only) totalling to an amount of ₹ 23,65,271.14/- (Rupees Twenty-Three Lakhs Sixty-Five Thousand and Two Hundred and Seventy-One Rupees Only) and the working of computation of unpaid amount is given as below: 1. Total billed amount from 19.05.2016 to 08.03.2017 ₹ 55,61,572.48/- 2. Advanced discounts ₹ 6,68,125.00/- 3. Amount received ₹ 29,82,424.00/- 4. Principal amount in default ₹ 19,11,023.48/- 5. Interest accrued on principal amount from 07.04.2017 to 01.08.2018 ₹ 4,54,247.66/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns are imposed: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in 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 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. It is further directed that: (a) The supply of essential goods or services to the corporate debtor as maybe specified shall not be terminated or suspended or interrupted during moratorium period; (b) The provision of sub-section 14 of the Code shall not apply to such transactions as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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