TMI Blog2020 (12) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... P.S.N. Prasad, Member (J) And Dr. V.K. Subburaj, Member (T) For the Appellant : Gaurav Jain, Punit Vinay For the Respondents : Satish Kumar Tripathi, Advocates ORDER P.S.N. Prasad, Member (J) 1. This is an application filed by M/s. Paragon Ceramics to initiate corporate insolvency resolution process ( CIRP ) against Rathi Ispat Ltd. under Section 9 of the Insolvency and Bankruptcy Code 2016 ( the Code ) for the alleged default on the part of the Respondent in settling an amount of ₹ 27,97,788 /- including interest are lying towards the goods supplied by the Applicant. The details of transactions leading to the filing of this application as averred by the Applicant are as follows: i. That the applicant supplied the basic and high temperature refectories items to M/s. Rathi Ispat Ltd. (Respondent) on various dates through various invoices. ii. The applicant stated that the details of the invoices/ bills against which the outstanding amount is due and a copy of all the invoices of year 2006-2007 and bank statement of transaction between parties have been annexed with the application. iii. The applicant further submitted that as per the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy the applicant has filed an execution application to which the Respondent filed an objection on 18.07.2017 wherein the Respondent has claimed that all of its assets and records has been taken over by the Punjab National Bank on 26.05.2008 and by the State Bank of India on 27.05.2008. x. That the said Punjab National Bank had also filed an objection dated 08.09.2017 to the said execution application regarding final decree dated 26.09.2016 wherein it has been clarified that although being secured creditor it has taken the symbolic possession of mortgaged property at south side plot No.2, G.T. Road, Industrial Area, Ghaziabad but said secured asset could not be sold out till date. xi. The applicant submits that a demand notice dated 02.04.2018 under section 8 of the Insolvency and bankruptcy Code, 2016 was sent to the Respondent at its registered office and also to its directors for the payment of the outstanding amount of ₹ 57,89,884/- which was duly served except to one director. The applicant further submitted that no notice of pre-existing dispute has been received by the applicant within a period of 10 days of service of demand notice. 2. Since the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Punjab National bank being head of consortium Banks have taken action against the respondent company under SARFAESI Act and consequent thereto have taken over possession of all assets of the company vide possession notice dated 28.12.2007 and therefore, the applicant needs to file its claim before the said bank. vi. The Respondent submits that due to heavy losses and unforeseen closure of production of the Respondent Company, there are other number of cases which has been filed by different entities and persons before different courts and some of them have been decreed and some are still pending in the Hon'ble courts. That the winding up petitions filed against the respondent Company and pending before Hon'ble High Court of Delhi at different stages viz. Co. petition No. 180/210- Indian Bank v. Rathi Ispat Ltd., Co. Petition No. 289/2006- Inox Air Products v. Rathi Ispat Ltd., Co. Petition No. 116/2009- Avantika Chemicals metals Pvt. Ltd. v. Rathi Ispat Ltd. etc. and therefore this Hon'ble Tribunal may not proceed against the respondent company which otherwise lead to multiplicity of the proceedings. vii. The Respondent further submitted that all assets of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like to refer to the judgement of Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 1121 of 2019 in the matter of Ishrat Ali vs. Cosmos Cooperative Bank Ltd. Anr. Dated 12.03.2020 in which Hon'ble NCLAT referred the decision of Hon'ble Apex Court reported in 2019 (10) SCC 750 Jinesh Shah and another vs. Union of India and another which Hon'ble Apex Court held that- that the aforesaid judgements correctly hold that a suit for recovery based upon a cause of action that is within limitation cannot in any manner impact the separate and independent remedy of a winding-up proceeding: by placing reliance upon this thus, while holding so, the Hon'ble Supreme Court says that the date of default is the date for the purpose of computing the period of limitation of application under section 7. The same principle is applicable in the present case. mere filing of a suit for recovery or a decree passed by a court cannot be held to be deferment of default is the date for the purpose of computing the period of limitation of application under section 7. The same principle is applicable in the present case, mere filing of a suit for recovery or a decree passed by a cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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