9911796707
TMI Blog2018 (10) TMI 1766X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the previous partners of the firm. The amended partnership deed with the same partners was also executed on 01.04.2010 which is at page 45 of the paper book. The firm is registered with the Registrar of Firms, Punjab vide Certificate of Registration in Form C, Annexure A-8 dated 11.11.1976 and Form D is at page 49 of the paper book. Form A under Section 59 of the Indian Partnership Act, 1932 is at Page 50 of the paper book showing the present partners to be only Mr. Gulshan Kumar Jain and Mr. Ajit Kumar, rest of the partners having ceased to be partners of the firm. 2. The application has been filed by the petitioner firm, in Form 5 as prescribed in Rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules 2016 (for brevity the 'Rules'). Mr. Gulshan Kumar Jain partner of the petitioner has been authorized by the partnership firm to file the petition under the Code in respect of the respondent-corporate debtor. The Authority Letter signed by both the partners is dated 09.04.2018 Annexure A-6. By another Authority Letter dated 09.04.2018 at page 41 of the paper book. CS Bhupesh Gupta, Practicing Company Secretary and Mr. Nahush Jain, Advocate ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n date was also sent. The notices in Forms 3 and 4 with the above documents is at Annexure A-1 (Pages 12 to 20) of the paper book. 6. The demand notice was sent by Speed Post. Copy of the Postal Receipt is at Page 22 of the paper book showing that postal article was sent on 11.04.2018 and the same was delivered to the respondent-corporate debtor as per tracking report dated 12.04.2018 at page 23 of the paper book. 7. Another affidavit of Mr. Gulshan Kumar Jain, Partner of the petitioner is at Annexure A-2 stating therein that the petitioner has not received any notice from the corporate debtor relating to a dispute of unpaid operational debt nor it has received any payment against the outstanding amount and therefore, there is the compliance of Section 9(3)(b) of the Code. 8. The petitioner has also obtained the certificate from HDFC Bank where it is maintaining its current account. The certificate issued by the bank is dated 19.04.2018 to the effect that no amount has been received from the corporate debtor in the current account of the petitioner maintained by the bank since 24.08.2016 except one cheque No. 001427 for an amount of Rs.2 lacs credited in favour of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the invoices of the supplies of the purchase by the petitioner from the respondent are enclosed with Annexure R-1. The respondent has also stated that the taxes in respect of all the supplies to the petitioner as applicable were also paid by the respondent-corporate debtor and the tax returns are Annexure R- 2 (colly) with the reply. 13. It is also stated that the aforesaid amounts of the purchases from 01.03.2018 to 31.03.2018 which have not been reflected in the statement of account of the respondent maintained by the petitioner are however, duly entered into the books of accounts of the respondent and copy of the ledger account of the respondent is at Annexure R-3. It is alleged that as per the books of the accounts maintained by the respondent an amount of Rs.2,60,520/- only is payable to the operational creditor which he is it is ready to pay. The petitioner has already taken coercive step against the respondent-corporate debtor by filing criminal complaints against them under Section 138 of the Negotiable Instruments Act. The respondent-corporate debtor is a running manufacturing unit with capital utilization of more than 70% and has employed more than 200 persons with a tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in the disputed invoices to have been deputed to deliver the goods who has stated that goods shown to be supplied under those invoices through Davinder, Driver in tempo Registration No. PB-10-ES-3760 that this tempo was not used at all to deliver those goods from the corporate debtor to the petitioner under these invoices. The reliance has also been placed on certain Whatsapp messages downloaded from the Whatsapp Messenger as Annexure RR-4 but we are not going into such an evidence placed in the file with the rejoinder for discussion. The allegations contained in the petition are reiterated and the defence raised by the respondent has been denied. 18. Alongwith the reply, the authorization by the Managing Director of the respondent-corporate debtor has been filed on page 75 of the reply authorizing CA Mr. Ravinder Joshi, Practicing Chartered Accountant to be Authorized Representative/Attorney for the proceedings against the corporate debtor under the Code. Mr. Joshi aforesaid has filed Memo of Appearance at page 76 of the reply. 19. The record of the case shows that Mr. Ravinder Joshi was present on 30.07.2018 and filed the reply. Mr. Nakul Sharma, Advocate appeared for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tness. The demand notice is addressed by the operational creditor to respondent-corporate debtor as is evident from the document Annexure A-1 (colly) and there is no reason to doubt the aforesaid contention of the petitioner. It is pertinent to mention that the documents which the respondent received as per tracking report at Page 23 of the paper book has not been placed on record by the respondent to controvert the allegation of the petitioner and to say that it contained different notice than what is relied upon by the petitioner. The notice in Form 3 and Form 4 clearly states that the amount as per the invoices and the ledger account be paid within 10 days from the receipt of the letter which as per the record was delivered on 12.04.2018. The instant petition has been filed on 01.05.2018 i.e. after the expiry of 10 days period. Therefore, the above issue is decided in favour of the petitioner and against the respondent-corporate debtor. 24. The controversy is basically relating to the existence of the dispute. This aspect is to be considered in the light of judgment of Hon'ble Supreme Court in Mobilox Innovations Private Limited Versus Kirusa Software Private Limited (2018), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent placed on record the cheques issued by it in the year 2015 to tally it with the serial numbers of the cheques Annexure A-11 (colly). These cheques bear Nos. 310961, 310962, 310967, 310964, 310968, 310966, 310969, 310952, 310963 and 310965. The respondent could also produce the record of the cheques which it had issued in the month of January, 2018 to March, 2018 to show that there was no question of issuing the above cheques in April, 2018. On doing so the respondent could possibly show that these cheques were issued from an old cheque book and not the current cheque book. Admittedly, the cheques were dishonoured with the endorsement that the payment was stopped by the drawer. The dishonoured memos of the bank are from pages 61 to 70. 26. Coming to the entries in the ledger book of the parties, there is no question of doubting the authenticity of the ledger account which the petitioner has placed on record for three years and the last entry in the account in the year 2017-18 is on 05.10.2017 with last payment made by the respondent to the tune of Rs.2 lacs on 18.05.2017. 27. With regard to the invoices and the GST Returns relied upon by the respondent, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd issue, the last payment made by the petitioner was admittedly for an amount of Rs.2 lacs on 18.05.2017. the instant petition filed on 01.05.2018 is clearly within time. Thus, this issue is also held against the respondent. 31. From perusal of the application in Form 5, we find that same to be complete in all respects. The operational creditor is not obliged to propose the name of the Resolution Professional to act as an Interim Resolution Professional but in the instant case the petitioner has propose the name of Mr. Anjum Goyal registered Resolution Professional with the IBBI to act as an Interim Resolution Professional. Mr. Anjum Goyal has also furnished his written communication in Form No.2 dated 21.04.2018 Annexure A-10 as prescribed under Rule 9 of the Rules giving the necessary particulars. It is certified that there are no disciplinary proceedings pending against him with the Board or ICSI Insolvency Professional Agency and that he is not serving as Interim Resolution Professional/Resolution Professional/Liquidator in any proceedings. We have perused Form No.2 and find the same to be in order. No defect in the written communication has been pointed out by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors 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'; iv) 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; v) The Interim Resolution Professional shall cause a public announc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
