TMI Blog2019 (9) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... /9/JPR/2018 - - - Dated:- 18-9-2019 - D . Poondla Bhaskara Mohan, Hon'ble Judicial Member And Sh Raghu Nayyar, Hon'ble Technical Member For the Applicant: Vimla Rupani, PCS Praveen Kumar Sharma, PCS For the Corporate Debto: Anurag Kalavatiya, Adv. Akansha Noval ORDER 1. The present application is filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'Code, 2016') read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Mrs. Kanchan Ostwal, Sole Proprietor of M/S J.K. Electrical (for brevity 'Applicant') claiming to be an operational creditor with a prayer for initiation of Corporate Insolvency Resolution Process against Mec Shot Blasting Equipment Private Limited (for brevity Corporate Debtor ). 2. The Applicant is the Sole Proprietor of M/s J.K. Electrical. The PAN No. of Applicant is AAAPO4480A and her address is at 32, Baktawarmalji ka Bagh, Chopasani Road, Jodhpur- 342003 (Rajasthan). 3. The Corporate Debtor is a Private Limited Company, incorporated under the provisions of Companies Act, 1956 on 09.08.1990, du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of ₹ 53,65,668.74/- on 16.11.20!8 on the Corporate Debtor, which was returned as undelivered to the applicant with remark Refused Return to Sender . Copy of the cover with remark is annexed. Thereafter the applicant has sent Section 8 notice through email dated 21.1 1.2018 to the corporate debtor but the Corporate Debtor has neither replied to the Demand Notice nor raised any dispute of the unpaid Operational Debt. Thus, the applicant filed the present application under section 9 of Insolvency and Bankruptcy Code, 2016. 7. In Part-IV of the present application, the Operational Creditor has given the details of the total amount of the Operational debt and the transactions on account of which the debt fell due: PART IV Sr. No. Particulars of Operational Debt 1. Total amount of debt ₹ 1,24,25,009.01 2. Amount claimed to be in default and the date on which the default occurred The Corporate debtor is required to make payments to the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing amount of ₹ 78,58,104/- vide letter dated 30.01.20 6 to the Applicant and had also issued 98 cheques toward the payment of outstanding amount. Thus, the Applicant submits that the Application is well within limitation period. The Applicant further submits that the good were supplied earlier and the Corporate Debtor did not raise any dispute as to quality of goods before, nor there is any breach of representation or warranty and therefore there is no pre-existing dispute. The Applicant also submits that the plea of the Corporate Debtor regarding pendency of Civil Suit is not maintainable as the said civil suit was filed on the apprehension that the Corporate Debtor is disposing off the property with intent to defraud its creditors and the said apprehension arose when the Applicant saw Public Notice in Danik Bhaskar Newspaper dated 07.011.2018 regarding sale of one of the properties of the Corporate Debtor. 12. The Corporate Debtor has filed written Arguments on 13.09.2019 and submits that prior to receipt of Demand Notice under Section 8, the Applicant has filed Civil Suit bearing C.O. No. 153/2018 captioned M/S J.K. Electricals versus Mec Shot Blasting Equipme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority has to reject the application. In the given case there is no proof that a dispute exists relating to the subject matter of this Application. (d) In the matter of Topsgrup Services Ltd. Versus BLS IT-Services (p.) Ltd. in IB -602/ND/2017, the Hon'ble NCLT, New Delhi held as follows: Respondent has taken the stand that there is existence of dispute with respect to the debt and demand in question. There has been no clear communication of dispute to the applicant about deficiency in services. No damage/counter claim has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t vide letter dated 30.01.2016 and issued cheques in lieu of payment of the debt. Irrespectively, despite such acknowledgement of debt by issuance of cheque towards admitted outstanding amount as a matter of fact, even considering the law in terms of Section 25(3) of the Indian Contract Act, 1872 the matter is within the purview of Law of Limitation. 17. In the given facts and circumstances, the present application is complete and the Applicant is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt. In the light of above facts and records the present application deserves to be admitted and this application is admitted. 18. The Applicant has not proposed the name of any Interim Resolution Professional. In view of the same, this Tribunal appoints Mr. Anoopkumar Goyal having Registration No. IBBI/IPA-001/IP-P00563/2017-18/11039 and email address doctor.anoop@gmail.com and contact number 9820291680, as the IRP of the Respondent. The IRP is directed to take all such steps as are required under the statute, inter-alia in terms of Sections 15,17,18,19,20 and 21 of the Code. 19. The consequences of initiation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
