TMI Blog2020 (1) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... r proceedings till date. So, the issue is continuous cause of action. Moreover, as per covenants made between the Parties, the nature of relationship between the Parties is stated to be of Principal-to-Principal basis. It is true that since proceedings initiated under the provisions of Code are summary in nature and Adjudicating Authority cannot exceed its authority in entertaining and deciding disputed questions of fact. The instant Petition is basically filed with an intention to recover the disputed amounts, and that too after receiving part payments. However, the Adjudicating Authority is empowered to initiate CIRP if it is satisfied that debt and default in question exceeds one lakh or more. The Petitioner is directed to submit its claim as mentioned in the Petition, with all supporting tenable evidence to the Respondent, within a period of two weeks from the date of receipt of a copy of this Order - the Respondent is directed to consider the representation made by them by duly taking it into consideration and decide the same, by keeping in mind its status in the market and to resolve the issue once for all and pass speaking order, and communicate the same to the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed into the following Agreements: i. Agreements even dated 02nd September, 2011 in respect of Distribution Centre Nos. 46 47 for repacking, which were stated to have expired on 31st December, 2014. ii. Agreement dated 02nd September, 2011 respect of Distribution Centre Nos. 47 42 for delivery solutions, which was stated to have expired on 31st March, 2014. iii. Agreement dated 02nd February, 2012 in respect of Distribution Centre Nos. 46 45 for Delivery Solutions which was stated to have expired on 31st March, 2014. iv. Agreement dated 03rd March, 2012 in respect of Distribution Centre No. 45 for repacking, which was stated to have expired on 31st December, 2014. Accordingly, the services of the Operational Creditor were availed for Re-Packaging, Loading, Transportation and delivery of Goods from the different Warehouses of the Corporate Debtor Company to its Clients spread out at different locations in the Country. (d) As a matter of business practice, the Operational Creditor was raising regular bills/invoices to the Corporate Debtor against which the Corporate Debtor used to make payments. However, the Corporate Debtor was not very prompt and regular in m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that since the Corporate Debtor had not denied its liability to the claimed amount and was concerned about the invoices raised against them by the Operational Creditor is nothing but indeed an implied admission of the liability/debt by the Corporate Debtor. (h) Aggrieved by non-payment of its outstanding amount, the Petitioner preferred C.P. (IB) No. l07/BB/2019 before the Adjudicating Authority on 21.03.2019, which was duly withdrawn by the Petitioner vide order dated 08th July, 2019 due to small technical mistake made by the Operational Creditor while sending the Legal Notice to the Corporate Debtor dated 25.12.2018, wherein, the Operational Creditor had not followed the prescribed format given in Form-3 under Rule 5 of the I B (AAA) Rules, 2016, with a liberty from Adjudicating Authority to file a fresh CP, in accordance with law. (i) Accordingly, the Petitioner served a fresh Demand Notice dated 29.07.2019, as per the prescribed format, under the Code in Form-3 under Rule 5 of the I B (AAA) Rules, 2016 to the Corporate Debtor with all the attached invoices raised by the Operational Creditor to the Corporate Debtor, as per the Agreements between the parties. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding disputes with respect to poor quality of services, false invoicing by the Operational Creditor and its Sister Concern, the Respondent terminated Agreements with the Respondent and its Sister Concern in the year 2014. The Directors of the Operational Creditor are managing partners of the Sister Concern. Hence, claims pursuant to the alleged invoices raised several years ago are patently barred by limitation. (c) It is stated that the instant Petition u/s 9 of the Code is not maintainable and deserves to be dismissed in limine on the following among other grounds: i. The claim of the Operational Creditor is barred by limitation; ii. Pendency of disputes between the Operational Creditor and the Respondent, prior to filing of the present Application; iii. There is no acknowledgment of debt and the Operational Creditor has failed to make out a case against the Respondent. (d) It is alleged that the Petitioner has filed the instant petition with a mala fide intention of coercing the Respondent to settle disputed claims and is ought to be dismissed on this ground alone. The Respondent has relied upon the judgment of B.K. Educational Services Private Limited v. Parag G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Operational Creditor. Further, the Respondent has not acknowledged any debt due to the Operational Creditor as claimed by it. The Operational Creditor has proceeded on an illogical correspondence issued by the Operational Creditor ought to be treated as 'acknowledgement of debt'. The alleged unilateral correspondence issued by the Operational Creditor even after the Respondent had made it clear that the claim was disputed, cannot extend limitation or revives stale claims. The Bank's statement supposedly issued by ICICI Bank does not bear any acknowledgement from the Bank. Thus, the instant application is frivolous and deserves to be dismissed. 4. Heard Mr. Gagan Chhabra, learned Counsel for the Petitioner, and Mr. V. Srinivasa Raghavan, learned Senior Counsel for the Respondent. We have carefully perused the pleadings of both the parties along with extant provisions of the Code, the Rules made thereunder, and the Law on the issue. 5. With the consent of both the learned Counsels, by coming to prima facie conclusion basing on the facts and circumstances of the Case with regard to debt and default in question, and keeping it open the serious disputed questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is necessary to advert to rival contentions of the Parties. The following basic facts are admittedly not in dispute: (a) As per Letter dated 10th February, 2015 of Respondent, which is enclosed as page 30 to the Reply, the Agreements in question, as detailed supra, are not in dispute and the service rendered by the Petitioner to the Respondent is also not in dispute. And after terminating the Agreements in question, the Respondent is not availing any services from the Petitioner from 31st January, 2015. They have also stated that the Respondent has again confirmed and expressed ready and willing to make payments for the un-disputed bills, if any, after successful completion of reconciliation process. (b) It is not the case of Respondent that they have not availed services in question rendered by the Petitioner but they are contending that the Claims are not substantiated by the Respondents. In this regard, while denying various communications (emails etc.) placed by the Petitioner, the Respondent is also relying on their alleged emails sent to the Petitioner to deny the claim of the Petitioner. (c) The Respondent, in their Reply dated 10th August, 2019, issued in respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing employment to 4000 employees and also has a Paid-up Capital of more than ₹ 1300 Crores. It is a financially stable Company and its annual turnover in the year 2018 was about ₹ 5800 Crores. Initiation of CIRP against the Corporate Debtor, will have serious civil consequences on it and it would affect so many employees. Therefore, though we are of the prima facie view that there are grounds to initiate CIRP, as sought for, we are not inclined to initiate CIRP at present, duly taking into consideration of the status of the Corporate Debtor, and thus inclined to dispose of the instant Company Petition by granting one more opportunity to the Parties to resolve their dispute between themselves. 12. In the light of the above facts and circumstances of the case and with consent of both the parties, C.P. (IB) No. 385/BB/2019 is disposed of with the following directions: (1) The Petitioner is directed to submit its claim as mentioned in the Petition, with all supporting tenable evidence to the Respondent, within a period of two weeks from the date of receipt of a copy of this Order. (2) On receipt of the same, the Respondent is directed to consider the representation ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
