TMI Blog2019 (9) TMI 1380X X X X Extracts X X X X X X X X Extracts X X X X ..... ts pre- dispute regarding the claim amount. The e-mail communication from the respondent company, placed at page No. 10 to the reply clearly shows that there is/was pre-existing dispute. Since the very objective of the Code is re-organization and insolvency resolution of corporate persons, no objective will be served by subjecting a solvent company to insolvency resolution process. Further, recovery is an individual effort by a creditor to recover its dues through a process that has debtor and creditor on opposite sides. When creditors recover their dues - one after another or simultaneously from the available assets of the firm, nothing may be left in due course. Thus, while recovery bleeds the corporate debtor to death, resolution ende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Grain Market Road, Jamnagar 361 005, Gujarat State. Authorised share capital of the respondent company is ₹ 1,00,000/- and paid up share capital is ₹ 1,00,000/-. 4. The applicant/Petitioner submitted that the applicant had supplied goods to the respondent during the period from 4th August, 2016 to 9th December, 2017 as per the invoices/delivery challans copy of which are placed at page No. 31 to 56 to the application totally amounting to ₹ 15,57,708/-. That, the corporate debtor is also liable to pay interest @ 18% per annum on the outstanding due amounting to ₹ 3,00,394/- as interest, as per the terms of the invoices from their due date of Invoices, till 22nd August, 2018 as per the computation placed at page N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perational creditor to the corporate debtor with ledger account of 2016-17 is annexed at Annexure R-I. The entire proceeding is being planned and framed by a a recovery agent Mr. Saurabh Khandelwal who runs a website being www.business-doctqrs.in for such recovery on behalf of the operational creditor. That the operational creditor has produced the e-mails from the recovery agent Mr. Saurabh Khandelwal and operational creditor by threatening the corporate debtor for CIRP and further for punishment of concealment of property, punishment for transaction defrauding creditors, punishment for misconduct in the course of CIRP, punishment for falsification of books of corporate debtor and under other provisions of IBC. That, further instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment, copy of such invoice is placed at page No. 10. Findings: 11. Heard the learned counsels for both the sides and perused application, written objections and the documents submitted by the parties. 12. On perusal of the records it is found that there is some mutual understanding between both the parties and in view of that the corporate debtor paid an amount of ₹ 25,00,000/- (Rupees twenty-five Iacs only) to the operational creditor as an advance with a condition to repay said amount as and when the operational creditor is successful to recover the same from M/S. Flovel Valves Private Limited who has defaulted in payment. The said fact is revealed from the e-mail letter dated 12th November, 2016 placed at page No. 10 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced before the Adjudicating Authority. On perusal of the ledger account produced by the applicant at page No. 59 and the ledger account produced by the corporate debtor at page No.8 of the objection, it is found that both are not same. There is a variation at entry dated 02.09.2016 in ledger statement produced by the corporate debtor and that of the operational creditor. As per ledger of corporate debtor ₹ 25,00,000/- has been paid to the operational creditor. This entry of ₹ 25,00,000/- has not been shown in the ledger of operational creditor. To come to such finding, whether the corporate debtor has actually paid or not is the matter which requires testimony of the documents by way of evidence which is not possible here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l India (P) Ltd. Vs. Satish Kumar Gupta and Ors. the Hon'ble Supreme Court observed that corporate debtor consist of several employees and workmen whose daily bread is dependent on the outcome of the CIRP. If there is a resolution applicant who can continue to run the corporate debtor as a going concern, every effort must be made to try and see that this is made possible 18. Further, IB Code provides that while admitting an application for initiation of corporate insolvency resolution process, in addition to fulfilling other requirements, it must be supported by documentary proof of undisputed debt. The Supreme Court in IBA Health (P) Ltd. vs. Infodrive system Sdn. Bbd. (CA No. 8230 of 2010) has field that a company court should ..... X X X X Extracts X X X X X X X X Extracts X X X X
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