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TMI Blog2021 (6) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... Micro India Private Limited(for brevity 'Applicant'), through its managing director vide power of attorney dated 26.12.2017 with a prayer to initiate the Corporate Insolvency process against DR Jain Video on Wheels Limited (for brevity 'Corporate Debtor'). 2. The Applicant is a private limited company incorporated under the provisions of Companies Act, 1956 on 05.03.1996, having CIN 72900MH1996PTC136340 inter-alia, involved in the business of distributor of IT hardware equipments. The applicant is having its registered office at Godrej It Park B Block 5 Floor Piroshanagar LBS Road, Vikhroli West Mumbai-400079. 3. The Corporate Debtor is a limited company incorporated under the provisions of Companies Act, 1956 on 03.01.199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and on behalf of the Corporate Debtor. 8. The applicant submits that NSTPL on behalf of the corporate debtor had issued a cheque for Rs. 42,20,000/- drawn on Dena bank dated 05.07.2016, which was deposited with its bank HDFC bank by the applicant. However, the cheque was dishonored for the reason of 'insufficient funds'. Copy of the intimation memo of HDFC bank is annexed along with the copy of cheque. The applicant has initiated proceedings under section 138 of the Negotiable Instrument Act, 1881. 9. The Applicant submits that Indian Bank has issued a notice 22.06.2017 under Section 13(2) of the SARFAESI Act on the Corporate Debtor herein in its capacity as Corporate Guarantor for the loan availed by NSTPL. The Applicant states ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e master data, which was duly delivered to the corporate debtor as it did not bounce back. The affidavit of service is filed along with the proof of service. The Hon'ble NCLAT in the matter 'K.B. Polychem (India) Ltd. vs. Kaygee Shoetech Private Limited' has held that any notice served as per Rule 38 of NCLT Rules, 2016 is sufficient evidence to show the delivery as complete. Rule 38 of National Company Law Tribunal Rules, 2016: Service of notices and process: (1) any notice or process to be issued by the tribunal may be served by post or at the email address as provided in the petition or application or in the reply' 14. The corporate debtor has filed a reply and has contended as follows: i. That the statement of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation on 02.09.2019, the corporate debtor agreed and confirmed an amount of Rs. 45,00,000/- would be paid in three instalments as: i) Rs. 8 lacs (vide cheque dated 23.08.2019 issued by People Energy Organization Limited) ii) Rs. 2 lacs (vide cheque dated 07.09.2019 issued by NBA Group of Institution), iii) Rs. 35 lacs (vide cheque dated 07.10.2019 NBA Group of Institution). This schedule of payment was recorded in the Withdrawal Memo/Joint Application signed and filed by the parties with this bench on 02.09.2019. The application for withdrawal was allowed to the applicant after recording settlement and taking the same on record and the bench gave liberty to the applicant to revive the application in the event of default by the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction to entertain and try this application. 22. The Present application is filed within limitation. The date of default is 2014 as per the invoice and the first application was filed in 2017. Thereafter, due to dismissal of the said application on technical ground, fresh application filed in 2018. In 2019 the corporate debtor admitted the debt while settling the matter on 02.09.2019. Hence, the debt is not time barred and the application is filed within the period of limitation. 23. As a sequel to above the present application is admitted, in terms of section 9(5) of IBC, 2016 and the Applicant has proposed the name of Mr. Manoj Kulshrestha as Insolvency Resolution Professional, who is be and hereby appointed as IRP of corporate d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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