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TMI Blog2020 (1) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... er referred to as "the Code"] read with rule 6 of The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as "the Rules"], as operational creditor/applicant. 2. The respondent/corporate debtor is a company registered under the Companies Act, incorporated on 1-9-2010 having identification No. U26933GJ2010PTC062183 and having registered office at Morbi, Gujarat State. Authorised share capital of the respondent company is Rs. 10,00,00,000 and paid up share capital is Rs. 9,21,66,600. 3. The applicant/operational creditor company is engaged in the business of supply of Frit to be applied on vitrified tiles such as Anti-stain compound, Hi Gloss WR02, Soluble Salt-CTD 415 Dark Brown, soluble sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outstanding. 8. It is further stated by the operational creditor that despite sending numerous emails to the new management as well as the old management of the corporate debtor company demanding outstanding payment along with interest, all the e-mails were not responded by the corporate debtor and did not raise any protest. Therefore, the operational creditor was constrained to issue statutory notice for winding up u/ss. 433 and 434 of the Companies Act, 1956 dated 17-7-2015, but the said notice also remained unanswered by the corporate debtor. Thereafter, the operational creditor issued demand notice in Form No. 3, dated 31-7-2018 u/s. 8 of the Insolvency and Bankruptcy Code, 2016 on 31-7-2018 to which the corporate debtor gave a vague r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s working as a Dy. Manager in the applicant company. The petitioner has not furnished any document authorising Mr. Paresh Waskar to initiate insolvency proceedings against the respondent company. It is to be noted that the company being juristic person can only act through an "Authorised Representative". Form No. 5 mandates to submit "name and address of the person authorised to submit application on its behalf". The authorisation letter is required to be enclosed. The signature block of the aforementioned Form No. 5 also provides for authorised person's details is to be inserted and also included, inter alia, the position of the authorised person in relation to the applicant. Thus it is clear that only an authorised person as distinct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llan (page 19-55), none of them is matching with the list except two (2) invoice cum delivery challan being numbered as 972140013 and 9721400141, whereas, the remaining 24 invoices pertain to some other transactions. In other words, particulars given in the list at page No. 18 does not tally with page No. 19 to 55 i.e. invoice cum delivery challan. The very document creates serious doubt with regard to bona fide of the applicant. 17. Admittedly, the applicant issued statutory notice for winding up under section 433 and 434 of the Companies Act, 1956.but, has never filed any application before the Hon'ble High Court for winding up and thereby allowed the claim/right to be time barred. Thus, on this count also it finds that the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mind that Insolvency & Bankruptcy Code is not a recovery process. Recovery is an individual effort by a creditor to recover his dues through a process that has debtor and creditor on opposite sides. In fact, the I & B Code prohibits and discourages recovery in several ways. The insolvency code cannot be used for extraneous consideration or as a substitute for debt enforcement procedure, when it requires further investigation. 22. Under the facts and circumstances as mentioned above, there is/are no merit in the application, rather the same is filed with malicious intent and thereby applicant misused the process of law. Hence, a penalty of Rs. 1.00 lakh is imposed upon the applicant. The penalty so imposed is to be deposited in the Defence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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