TMI Blog2020 (10) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... that such cheque got dishonoured due to such false claim made by the Petitioner. However, it is evident that no such contention was ever made or such plea is taken by the Respondent, prior to issue of Demand Notice. It is a matter of record that the said cheque was properly presented before the Bank but it got dishonoured by the Bank due to insufficient funds/ exceeds arrangement and not for any other reason. Thus, such alleged act on the part of the respondents attracts penal provision of the Section 138 of the Negotiable Instruments Act. Hence, such contention of Corporate Debtor is without proof and substance. Hence, it is not acceptable being an afterthought plea. Time Limitation - HELD THAT:- It is a matter of record that the Petitioner duly performed his part of contract /agreement and was getting regular payments time to time from the Corporate Debtor. So, this may be the position in respect of present cheque also, which got dishonoured by the Bank for want of sufficient funds. That shows that the Corporate Debtor has admitted its debt liability to the extent of amount mentioned in the cheque, i.e. ₹ 17,90,000/- and which undisputedly is above rupees one Lakh to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Road, Indore -452001, Madhya Pradesh, India. 3. It is stated that the Respondent/Corporate Debtor Company, namely M/s. Orion Contractors Pvt. Ltd. was incorporated on 19.03.1999 with the CIN: U45203MP1999PTC013407 and appears to be engaged in the building construction business. 4. As stated, the Corporate-Debtor-Company is having nominal share capital of ₹ 50,00,000/- (Rupees Fifty Lakh) and the paid-up share capital of the company is ₹ 50,00,000/- (Rupees Fifty Lakh). The registered office of the Corporate Debtor Company is situated at: 301, Krishna Tower, 2/1, New Palasia, Indore, Madhya Pradesh -462001, India. 5. The Petitioner submits that, the Respondent/Corporate Debtor was allotted a work contract by the Narmada Hydroelectric Development Corporation ( NDHC ), which is stated to be the joint venture of NPHC and the Government of Madhya Pradesh vide letter dated 03.12.2007 for the construction of WBM Road (Phase-II) and Construction of WBM (Final coast) and asphalting of internal roads Phase-I II and approach road for resettlement site Tonki of OSP. The project is stated to have a value of ₹ 49,41,344/- (rupees Forty-Nine Lakh Forty-One Thousan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Operational Debts for work contract after a one per cent deduction of profit, in addition to statutory deduction of Income Tax (TDC) as per the entered agreement. 9. It is stated that the Respondent/Corporate Debtor has paid a part payment for the work contracts as mentioned in above paragraphs and there is an outstanding operational debt of ₹ 21,00,678/- (Rupees Twenty One Lakh Six Hundred Seventy-Eight only). The Petitioner has annexed copies of the ledger account along with the present petition as Annexure A/3. 10. It is submitted that, the Respondent/Corporate Debtor, in lieu of such said debt of ₹ 21,00,678/- gave a cheque of ₹ 17,90,000/- (Rupees Seventeen Lakh Ninety Thousand only) as a part payment vide YES Bank at Mahatma Gandhi Road Branch, Indore, bearing cheque No. 315034 dated 29.08.2017. It is submitted that the said cheque was deposited on 15.11.2017 but got dishonoured/not cleared, stating the reason of insufficient funds or exceeds arrangements . A copy of said cheque has been place at page No. 51 of the present petition. 11. Pursuant to such, the Petitioner/ Operational Creditor sent a demand notice in the prescribed Form under Rule- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was done by the Petitioner was also defective against which some additional cost was incurred by the Respondent amounting to the tune of ₹ 12,84,937/- and cost for transport of the material ₹ 1,30,771/- which were claimed to be borne by the Respondent/Corporate Debtor itself. The leftover work was done by the Respondent which also claimed to be amounted to ₹ 10,26,000/-. 20. The Respondent also contended that against the completion of the said work, he received payments of ₹ 10,05,067/-as the rest of amount was already paid to the Petitioner, leaving the additional cost recoverable from the applicant to the quantum of ₹ 14,36,641/-. Therefore, the Petitioner's claim for an amount of ₹ 21,00,678/- was in dispute due to violation of sub-letting agreement arising from non-execution of complete work and the amount to be recovered from the Petitioner itself. 21. It is also contended by the Respondent that in respect to the work contract letter dated 17.09.2008, the security amount had not been released by the concerned department amounting to ₹ 7,45,264/- which is included in the total claimed amount of ₹ 21,00,678/-, which, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a debit note of ₹ 14,36,641/- was raised on 31.12.2017. Which is replied that - no debit note has ever been served on the Petitioner by giving details of amounts incurred and the debit note was not submitted in the proceedings before this tribunal. The said amount was debited on 31.12.2017, i.e. two days after the receipt of demand notice. f) It is contended that letter from PWD (Khandwa Division) have not been annexed in support of incomplete work. The same was replied that - In order to show that the work was incomplete, the Respondent at page 32 of their objections dated 13.11.2018 attached a letter dated 22.10.2013 pertaining to a different contract not allotted to the Petitioner. The contract sublet is No. 43, while the letter pertains to a contract 126/2012-13. 26. We considered the above given facts and circumstances of the present case for the purpose of admissibility of the present I.B. Petition or otherwise. We heard the rival submissions made before us by the Learned Counsel for both the parties and perused the material available on record. By perusing of the contents of the I.B. Petition, it is undisputed position in the present matter that the Respondent / ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds payment of final bill. However, as per the Respondent, such could not been materialised but the Corporate Debtor did not enclose any document as proof of written communication about a protest letter to recall such issued cheque or by giving some instruction to the Bank to not to deposit such cheque with the Bank. It is a matter of record that the said cheque was properly presented before the Bank but it got dishonoured by the Bank due to insufficient funds/ exceeds arrangement and not for any other reason. Thus, such alleged act on the part of the respondents attracts penal provision of the Section 138 of the Negotiable Instruments Act. Hence, such contention of Corporate Debtor is without proof and substance. Hence, it is not acceptable being an afterthought plea. It is a matter of record that the Petitioner duly performed his part of contract /agreement and was getting regular payments time to time from the Corporate Debtor. So, this may be the position in respect of present cheque also, which got dishonoured by the Bank for want of sufficient funds. That shows that the Corporate Debtor has admitted its debt liability to the extent of amount mentioned in the cheque, i.e. ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f money. As opposed to this, on operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5(21) means a claim In respect of provision of goods or services. 28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the Explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor it need not be a debt owed to the applicant financial creditor. Under Section 7(2), an application is to be made under sub section (1) In such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form is a detailed form in 5 parts, which requires particulars of the applicant In Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional In Part III, particulars or the financial debt in Part IV and documents, records and evidence of default In Part V. Under Rule 4(3), the applicant is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner/Corporate-Debtor has not suggested name of any Insolvency Professional. Hence, the same to be appointed by this Adjudicating Authority. 32. Hence, this Adjudicating Authority hereby appoints (MP) Mr. Rahul Anand, having Insolvency Professional Registration No. IBBI/IPA-003/IP-N000166/2018-2019/11955, Email rahulpnb@hotmail.com, as an Interim-Resolution-Professional. The Interim-Resolution-Professional is further directed to make public announcement of moratorium in respect of Corporate-Debtor-Company soon after receipt of an authenticated copy of this order and to act further as per the order/direction issued by this Adjudicating-Authority and to follow the provisions Section 13 and 14 and relevant provisions of the Insolvency and Bankruptcy Code. 33. As per the provisions of Section 13 and 14 of the I.B. Code on the date of commencement of insolvency, this adjudicating authority declares moratorium for prohibiting all of the following, namely: - (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal arbitration panel or other autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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