TMI Blog2019 (6) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... ok Kumar Mishra, Member (T) 1. C.P. (IB) No. 69/BB/2019 is filed by M/s.Sunil Healthcare Limited ('Petitioner/Operational Creditor')under Section 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s.Beloorbayir Biotech Limited ('Respondent/ Corporate Debtor') on the ground that the Corporate Debtor committed a default for total outstanding amount of ₹ 53,66,640/- on various dates and subsequent receipt of payment of ₹ 5,00,000/- on 30.11.2018, ₹ 7,08,000/- on 27.12.2018 and ₹ 8,14,200/- on 10.01.2019 respectively, the total dues was ₹ 33,66,640/- (Rupees Thirty Three Lakhs Sixty Six Thousand Six Hundred and Forty Only) excluding interest. 2. Brief facts of the case, as mentioned in the Company Petition, are as follows: (1) M/s. Sunil Healthcare Limited ('Petitioner/Operational Creditor') is a Company incorporated on 05.02.1973 under the provisions of Companies Act, 1956 with CIN: L24302DL1973PLC189662 and having its registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied under the invoices, which are the subject matter of this proceeding. Despite receiving the said goods, the Corporate Debtor has failed to pay the sum of ₹ 53,66,640/- within the due date in respect of the goods supplied. Further, as per the terms of sale, the Corporate Debtor is liable to pay interest @ 18% p.a. form the due date of payment till the date of payment. The Operational Creditor had requested the Corporate Debtor several times, both orally and in writing, to clear the outstanding amount, but to no avail. (6) It is further stated that the Operational Creditor has no faith left in the Corporate Debtor Company, and it is apparent that the Corporate Debtor neither has any inclination, nor any means to pay the outstanding amount of ₹ 53,66,640/- to the Operational Creditor. (7) In the above circumstances, the Operational Creditor issued the Demand Notice dated 29.11.2018 in Form-3 and Form-4, whereby, the Operational Creditor called upon the Corporate Debtor to make the payment of the outstanding amount. (8) Corporate Debtor vide its reply dated 07.12.2018, though accepted the claim of Operational Creditor but sought further time for clearing the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 8 of the IBC, 2016. (4) In the Demand Notice, the Applicant demanded the Respondent to pay an amount of ₹ 53,66,640/- (Rupees Fifty Three Lakh Sixty Six Thousand Six Hundred and Forty Only). However, the said amount as tallied with the accounts of the Respondent seemed to be exorbitant and incorrect. Hence, the Respondent vide its response dated 07.12.2018 which was well within the period of ten days since the Demand Notice conveyed to the Applicant that the Respondent was in the process of verifying its records, and further also intimated the factum of ₹ 5,00,000/-being cleared. It is stated that the Respondent in terms of Section 8(2) of the Code undertook to clear the dues upon verification of its accounts. (5) On the premise of Respondent agreeing to repay the dues as per its accounts being communicated to the Applicant within the prescribed period of ten days itself, the instant application is liable to be dismissed. (6) It is further stated that the Respondent has not only responded vide a time-bound letters that it would repay the amounts due but has also made repayment of monies payable as per its statement of accounts as elaborated hereunder. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant application is liable to be dismissed. 4. Heard Shri Mukesh Yadav, learned Counsel for the Petitioner and Ms. Amrutha Varshini and Shri Shirish, learned Counsels for the Respondent. We have carefully perused the pleadings of the parties and the extant provisions of the Code. 5. It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited (2018)1 SCC 353, has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. Further, Hon'ble Supreme Court in the case of Transmission Corporation of A.P.Ltd. Vs. Equipment Conductors and Cables Ltd., (CA No. 9597 of 2018) dated 23rd October, 2018, (2018) 147 CLA 112 (SC) inter alia, held that existence of undisputed debt is sine qua non of initiating CIRP. As per para 34 of judgement, it is stated that Adjudicating Authority, while examining an application filed under Section 9 of Code, will have to determine: i. Whether there is an 'operational ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
