TMI Blog2018 (12) TMI 1698X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of Section 9, this petition deserves to be admitted - Petition admitted - moratorium declared. - CP 619/IBC/NCLT/MAH/2018 - - - Dated:- 14-12-2018 - Mr. V. P. Singh, Member (Judicial) And Mr. Ravikumar Duraisamy, Member (Technical) For the Petitioner : Mr. Rahul Totala For the Respondent : Ms. Sheetal Parkosh i/b Jayesh Desai Associates ORDER Per V. P. Singh, Member (Judicial) 1. It is a Company Petition filed u/s 9 of Insolvency Bankruptcy Code, 2016 by Operational Creditor, namely Nico Extrusions Limited against Corporate Debtor, namely Nicomet Industries Limited stating that the Corporate Debtor failed to make payment of ₹ 31,70,404/- comprising of principal amount of ₹ 20,58,704/- and interest of ₹ 11,11,700/-. The Company Petition is to initiate Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. 2. The background of the case is that the Operational Creditor has sold 8 licenses to the Corporate Debtor for an amount of ₹ 51,28,704/-. The Section 8 notice of the IBC was sent by the Operational Creditor to the Corporate Debtor on 9.3.2017 by Registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utation of claim. The amount of ₹ 11,11,700/- stated in the particulars of claim is not mentioned in the demand notice. Therefore, the notice itself is vague, void and defective and a petition based on such notice is liable to be dismissed. c) The petition is not maintainable for want of certificate from the creditor s financial institution. d) There are discrepancies between the unpaid amount mentioned in S. 8 notice (₹ 20,58,704), Petition (₹ 31,70,404/) and the invoices annexed (₹ 51,28,704/-). e) According to the accounts of the Corporate Debtor, it is liable to pay only ₹ 1,00,000/- to the Operational Creditor. And the Corporate Debtor enclosed a cheque for the same amount to the reply of demand notice sent by the Operational Creditor. f) The Corporate debtor purchased certain materials from a group concern of the Operational Creditor called Metec Asia Ltd. The goods were further supplied to one Jaico Enterprises LLP. The quality of the goods being of poor standard, the said Jaico Enterprises raised debit note for ₹ 19,97,563/-. The Corporate Debtor in turn telephonically informed the Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outstanding amount of ₹ 31,70,404/-. b) With regards to dues being of only ₹ 1,00,000/-, the Operational Creditor has stated that it is a manufactured story. Confirmation of accounts as on 31.3.2016 issued by the Corporate Debtor themselves on 30.9.2016 clearly shows that the balance payable and confirmed by them was ₹ 20,58,704/- being the principal amount claimed in the petition. c) The Operational Creditor denied that the customary practice was to have most transactions telephonically and stated that the Operational Creditor follows a practice of serving contractual documents/ confirmations/ correspondence by letters or emails with every customer. d) The Operational Creditor stated that there is no concern of Metec Asia Limited to the present dispute. The Operational Creditor is not aware as to what and when the goods were supplied to one Jaico Enterprises LLP. The Operational Creditor is not aware of the fictitious debit note which is neither annexed to the present reply nor been received by the Operational Creditor. Further, the Operational Creditor has specifically denied that the Corporate Debtor has telephonically informed the Op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority has to reject the application. 11. The dispute raised by the Corporate Debtor is spurious defence. Most of the disputes raised by the Corporate Debtor during the hearing of the petition were not raised by the Corporate Debtor in the reply to S. 8 demand notice served before filing of the petition and have been raised belatedly at the time of hearing. Further, the Corporate Debtor has stated its willingness to settle the accounts in case of discrepancies of accounts. Also, no documents have been provided regarding the debit note raised upon the Operational Creditor for adjustment of ₹ 19,97,563/-. 12. The fact that bank certificate is not annexed in compliance of Section 9 (3)(c) of IBC has been held to be directory by the Hon ble Supreme Court in the matter of Macquarie Bank Limited v. Shilpi Cable Technologies Ltd. Civil Appeal No. 15135 of 2017 Therefore, this defence does not survive. 13. For the petition fulfilling the requirements ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
