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TMI Blog2019 (12) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... r brevity 'the Rules') by M/s. Jajoo Exim Private Limited (for brevity Applicant'), through its director Mr. Sahil Jajoo authorizing him to file present application vide Board resolution dated 11.04.2019, with a prayer to initiate the Corporate Insolvency Resolution Process against M/s. Parth Concast Limited (for brevity 'Respondent'). 2. The Applicant, the Operational Creditor, namely M/s. Jajoo Exim Private Limited is a company incorporated on 01.03.2005, under the provisions of Companies Act, 1956 with CIN No. U45201RJ2005PTC020356, having its registered office at 28, SSI Enclave Shopping Centre, Ambabari, Jaipur Rajasthan 302023, inter alia, is involved in the business of building of complete construction materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned supplies. As per terms of Invoice, payment must be made within 15 days of raising of invoice. 5. However, the Corporate Debtor has failed to pay the amount raised in the above mentioned invoices. The date of default is 25.07.2016, which is 15 days from date of last invoice raised by the Operational Creditor 6. On failure to pay the outstanding dues by the Respondent, the applicant sent a demand notice dated 26.11.2018, under Section 8 of the Insolvency and Bankruptcy Code, 2016 to the respondent asking them to make the payment of Rs. 4,04,540/- (Rupees Four Lakhs Four Thousand Five Hundred Forty), along with interest calculated @ 18% per annum on delayed payments, within 10 days from receipt of the notice, falling which the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor filed its reply and in its reply, the Corporate Debtor states that no operational debt is due and recoverable by the Operational Creditor as claimed since the Operational Creditor has itself accepted the same through various email correspondences. The Respondent also states that, the Operational Creditor has supplied quartz powder from time to time at the site of the Respondent but when the Respondent used the said materials for its purpose then it was found that the said powder was totally inferior and substandard in the quality. It is further submitted by the Respondent that, due to inferior and substandard quality of the said quartz powder, the Respondent had suffered huge financial loss as its plant & machinery got damag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues faced by them, instead the Corporate Debtor placed subsequent orders dated 06.07.2016 and 09.07.2016. Further, it was beforehand decided by both the parties that the Corporate Debtor will bear the transportation charges so it is irrelevant to mention that the Corporate Debtor incurred losses due to payment of transportation charges. Also, the purchase order PCL/PO/16-17/40, dated 30.06.2016, issued by the Corporate Debtor, states that the Freight Charges will be on "to pay basis". 13. The Applicant, further states that, the Corporate Debtor after receiving the products on 11.02.2016, did not raise the issue of being inferior quality rather was happy with the quality of product and also, placed subsequent order on 06.07.2016 and 09.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." In the present case, no such dispute is pre-existing, albeit a hypothetical or illusory dispute has been raised by the 'Corporate Debtor' and the same is a mere moonshine defense. 17. In view of above, we are satisfied that the present application is complete and the Operational Creditor is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a sum of Rs. 2 lacs with the Interim Resolution Professional Mr. Sourabh Malpani to meet out the expenses to perform the functions assigned to him in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the Operational Creditor. The amount however be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Operational Creditor. 24. As a consequence of the application being admitted in terms of Section 9(5) of IBC, 2016 moratorium as envisaged under the provisions of Section 14(1) shall f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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