TMI Blog2020 (10) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... lared. - C.P. (I.B.) No. 307/9/NCLT/AHM/2018 - - - Dated:- 28-5-2020 - Harihar Prakash Chaturvedi , Member ( J ) And Prasanta Kumar Mohanty , Member ( T ) For the Appellant : Kamlesh Vaidankar , Neelu K. Vaidankar For the Respondent : Jinal Shah and Nandish Chudgar , Advocates ORDER Prasanta Kumar Mohanty , Member ( T ) 1. 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. 2. The Petitioner/Operational Creditor is a registered company under the provisions of Companies Act, 1956, with a Company Identification Number (CIN) - U50500GJ2010PTC061576. The registered office of the Petitioner is situated at A-301, Aaryan , Near Pumping Station, Fatehpura, 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.06.2015 208553 208553 101820 124 30.06.2015 212940 212940 103646 126 30.06.2015 180823 180823 88014 16 03.07.2015 159939 159939 77612 34 08.07.2015 166608 166608 80437 63 13.07.2015 164268 164268 78903 87 16.07.2015 290277 290277 138999 122 20.07.2015 287761 287761 137227 132 22.07.2015 163566 163566 77839 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 6381365 6360924 2362893 Total outstanding amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever 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 is prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The insistence 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 fulfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt is 26.06.2015 27.3 Application is filed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with utmost dedication, honesty and strictly in accordance with the provisions of the 'Code', Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other persons associated with the management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the day-to-day affairs of the 'Corporate Debtor'. In case, there is any violation, the Interim Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional shall be under duty to protect and preserve the value of the property of the 'Corporate Debtor' as a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code, Rules and Regulations. 32. An authentic copy of this order to be communicated by this Registry to the Operational Creditor, Corporate Debtor, as well as to the Interim Resolution Professio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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