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2020 (10) TMI 62

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....ura, Paldi, Ahmedabad. The present Petition is filed through Authorised Person Shri Maulik Harishbhai Mehta, residing at A-6, Nikita Apartment, Opp. Fathnagar, Tubewell, Paldi, Ahmedabad. 3. The Respondent/Corporate Debtor, namely, Shambhu Textiles Mills Pvt. Ltd. was incorporated on 23.09.1996 with CIN: U17110GJ1996PTC030772. The authorised capital of the company is INR. 4,55,000,00.00 (Rupees Four Crore Fifty Five Lakh Only) and the paid-up capital is INR. 4,20,980,00.00 (Rupees Four Crore Twenty Lakh Ninety Eight Thousand Only). The registered office of the Corporate Debtor Company is situated at: Ranipur, Near Ranipur Bus Stand, Narol, Ahmedabad. 4. The present petition has been preferred by the Operational Creditor, HJM Fuels Pvt. Ltd. under Section 9 of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as a "Code") seeking for initiation of Corporate Insolvency Resolution Process ("CIRP" in Short) against the Corporate Debtor Company, namely, Shambhu Textiles Mills Pvt. Ltd. 5. It is submitted by the Petitioner that the Respondent/Corporate Debtor is indebted to the Petitioner for INR. 87,23,817 (Rupees Eighty Seven Lakh Twenty Three Thousand Eight Hundred....

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....;120986 105  17.08.2015  110445  110445  51144 114  18.08.2015  139527  139527  64542 132  22.08.2015  123765  123765  57006 137  22.08.2015  134850  134850  60112 155  24.08.2015  86296  86296  39663 14  08.05.2016  117180  117180  38949 83  20.10.2016  102866  102866  25821 29  07.02.2017  124975  124975  24591 49  10.02.2017  166287  166287  32474 101  16.02.2017  183681  183681  35327 135  21.02.2017  164780  164780  31286 139  22.02.2017  196121  196121  37139 141  23.02.2017  202270  202270  38204 153  25.02.2017  182735  182735  34334 685  20.11.2017  222952  222952  12424 690  25.11.2017  214334  214334  11415 694  28.11.2017  216442  216442  11208 Total    6....

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....ioner had never received any such documents and all these documents have been fabricated in back date to deceive not only the Petitioner but also to this Hon'ble Tribunal. In view of this, the Hon'ble Tribunal passed the judicial order dated 30.09.2019 directing the Respondent to produce the proof to show the documents which were sent and delivered to the Petitioner at the alleged point of time. 12. It is submitted that upon insistence by this Hon'ble' tribunal as well as by the Petitioner herein as to the proof of dispatch and delivery of these alleged documents, the Respondent ultimately produced an affidavit by its Peon stating that they have a practice of sending documents through ordinary post and hence there is no proof of dispatch of delivery. 13. It is further submitted that the Respondent had produced debit note dated 12.04.2017 along with its reply to the petition is afterthought and fake. It is submitted the bare look of the said debit note shows that it was hurriedly prepared and back dated after service of demand notice under Section 8 of Insolvency and Bankruptcy Code, 2016. Whenever, a debit notes in respect of goods returned or rejection of goods i....

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....ity and hence, the customers of the Respondents made several complaints and did not make the payments to the Respondents. That the Respondent reportedly sent several complaints to the Petitioner, much before the present proceedings, in the year 2015-2017. The Petitioner had also agreed to compensate the Respondent for losses suffered by the Respondent. Accordingly, a debit note was also issued by the Respondent to the Petitioner. However, the Petitioner did not fulfil its assurance and did not compensate the Respondent. 15.2 It is submitted that the Respondent, much before the present proceeding, on 24.07.2015, issued a letter to the Petitioner raising concerns about the quality of coal supplied by the Petitioner. In the said letter, the Respondent also conveyed the Petitioner that the random samples tested by laboratory (Independent laboratory) showed higher moisture content and less then permissible GCV. The laboratory analysis report is at page No. 177 of the written submission of the Corporate Debtor). 15.3 It is further submitted that the random sampling and analysis, on 24.08.2015, it is revealed that the moisture of the coal supplied is against the normal standard. There....

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....e of the Petitioner to require the Respondent to produce proof of receipt of such letters by the Petitioner is absolutely ill-founded. The provisions of the IBC about dispatch of notice by Registered Post is only with regard to Notice to be issued under Section 8(1) of IBC, which cannot apply to letters issued in usual course of business between the parties. 19. It is submitted by the Applicant that there is no suit or arbitration pending between the parties. The petition filed by the Petitioner is otherwise complete in all respects. 20. It is further submitted by the Applicant that in the matter of Mobilex Innovation Pvt. ltd Vs. KarusaSoftwere Pvt. Lts., Hon'ble Supreme Court has made it very clear any dispute raised by the corporate debtor after service of Demand Notice envisaged u/s 8 of IBC shall not be construed to be an existing dispute. In present case, the corporate debtor has not produced any single document to prove that there is any dispute between the parties prior to the demand notice. 21. It is submitted that the present petition is complete in all respects. The present petition is filed within limitation period. The resent petition fulfils all criteria laid d....

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....within the limitation period as the date of default is 26.06.2015 and the date of filing this petition under Section 9 of IBC is 26.06.2018. the last payment received from the corporate debtor was on 28.11.2017 for INR. 1,99,996.46. 28. Considering the material, papers filed by the Petitioner on record and the facts mentioned in the Para No. 27, 27.1,27.2 and 27.3 this Adjudicating Authority is satisfied that, a) Existence of operational debt is above Rs. One Lac; b) Debt is due; c) Default has occurred on 26.06.2015 Petition has been filed within the limitation period as the date of default started 26.06.2015 and the petition has been filed on 26.06.2018 and the last payment received from the corporate debtor was on 28.11.2017 for INR. 1,99,996.46.00 d) Existence of dispute prior to the notice issued by the Operational Creditor is not found. 29. As per the provisions of Section 13 and 14 of the I.B. Code on the date of commencement of insolvency, this Adjudicating Authority shall declare moratorium for prohibiting all of the following, namely: - I(a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execut....