TMI Blog2020 (2) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Company, which cannot be extinguished or transferred to another concern in the absence of any specific agreement or specific Board resolution to that effect in favour of the Corporate Debtor. This Bench is of the opinion that the dispute raised by the Corporate Debtor is illusionary and moonshine, which is upstretched with an intention to erase its liability and defeat the claim made by the Operational Creditor - the present Petition being complete and having established the default in payment of the Operational Debt beyond doubt, the Operational Creditor is entitled to claim its dues. The amount of default being above ₹ 1,00,000 for the unpaid invoice, the Petition is admitted in terms of Section 9(5) of the IBC and accordingly, moratorium is declared in terms of Section 14 of the Code. Application admitted. - (IB)-1048(ND)2019 - - - Dated:- 26-2-2020 - DR. DEEPTI MUKESH, MEMBER (J) AND L.N. GUPTA, MEMBER (T) For the Appellant : A.K. Vali And Rajat Jain, Advocates For the Respondent: P. Nagesh And Harshal Kumar, Advocates JUDGMENT PER SHRI L.N. Gupta, Member (T) 1. The present Petition is filed under the Section 9 of the Insolvenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eplied to the Demand Notice vide its Letter dated 05.11.2018. The Operational Creditor has annexed an Affidavit filed under the Section 9(3)(b) of IBC, 2016. The Operational Creditor has also attached the Bank Statements issued by Punjab National Bank for the period from 01.01.2018 to 30.03.2019 in compliance of the requirement under Section 9(3)(c) of IBC, 2016. 8. That the Corporate Debtor has filed its reply on 10.06.2019, wherein, it has submitted that the supplies made by the Operational Creditor were based on oral instructions and without written purchase orders. It has further added that both the Operational Creditor and Corporate Debtor were maintaining running account and payments were being made on regular basis. 9. It is also submitted by the Corporate Debtor that the entries for the period from 01.04.2017 to 31.03.2018 and 01.04.2018 to 16.04.2018 in the Ledger Account as annexed by the Operational Creditor are not correct. It is added that the Operational Creditor has deliberately concealed the entries of payments made by the Corporate Debtor for and on the behalf of the Operational Creditor to the three entities viz., Oyster and Iron Private Limited, Simla Holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Simla Holdings and M/s. Oyster Steel Iron Pvt. Ltd. 2,50,00,000 15.02.2018 16.02.2018 2,50,00,000 20.02.2018 21.02.2018 1,70,00,000 31.03.2018 2,50,00,000 31.03.2018 2,51,53,960.07 31.03.2018 2,50,00,000 31.03.2018 1,96,66,187 30.04.2018 15. On perusal of the letters annexed with the reply and alleged to have been written by the Operational Creditor, it is observed that they bear the signature of one Mr. Sandeep. One such Letter is reproduced below : 16. It is submitted by the Corporate Debtor that the sum total of the amounts shown in its Ledger as mentioned above is ₹ 16,18,20,146 (approx.), which equals to the amount claimed in the Petition by the Operational Creditor. The Corporate Debtor has, therefore contended that no amount is payable by them to the Operational Creditor. 17. That the Operational Creditor has filed its Rejoinder on 27.11.2019, inter alia, stating that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor. The Operational Creditor has annexed its Bank Statements to support its contentions. The details of the Bank Statements reflecting payment of ₹ 1,95,34,823 on 21.10.2017 and ₹ 1,95,79,294 on 10.11.2017 by the Corporate Debtor to the Operational Creditor, are reproduced overleaf : 21. Per contra, the Ld. Counsel for the Corporate Debtor has placed reliance on the Judgment passed by this Tribunal in the matter of M/s. Oyster Steels and Iron Pvt. Ltd. vs. M/s. SMW Metals Private Limited in (IB)-1244(ND)2019, the extract of which is reproduced below : Therefore, there exists a pre-existing dispute. Moreover, the relationship between the Corporate Debtor and Operational Creditor regarding the supply of goods and payment thereof is not direct and clear. That the documents placed by the Respondents are alleged to have been forged, which gives rise to a civil dispute, which requires further investigation, as such disputes will require adducing of further evidences and cross examination and cannot be resolved by this Tribunal summarily . 22. After hearing submissions of both the Parties and perusing the documents placed on record, this Bench h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) The recovery of any property by an owner or lessor, where such property is occupied by or in the possession of the corporate debtor. 26. As Proposed by the Operational Creditor, this Bench appoints Mr. Sumit Bansal as an IRP, having IBBI Registration No. IBBI/IPA-001/IP-P00111/2017-18/10218 subject to the condition that no disciplinary proceedings are pending against the IRP named and disclosures as required under IBBI Regulations, 2016 are made within a period of one week from this Order. The IRP is directed to take the steps as mandated under this Code specifically under Section 17, 18, 20 and 21 of IBC, 2016. 27. The Operational Creditor is directed to deposit ₹ 2,00,000 (Two Lakh) only with the IRP to meet the immediate expenses. The amount, however, will be subject to adjustment by the Committee of Creditors as accounted for by the Interim Resolution Professional and shall be paid back to the Operational Creditor. 28. A copy of this Order shall be communicated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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