TMI Blog2021 (8) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009), or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider. Therefore, from a parallel reading of the definitions of Corporate Person and Government Company under IBC and Companies Act, it can be summarized that the applicability provision of IBC is clear on this issue. There is no specific exemption for Government Companies under the IBC. Section 2(1) categorically states that the Code applies to all Companies incorporated under Companies Act, 2013 or under any other previous Company Law. It is evident that the Corporate Debtor which has taken goods from the Operational Creditor and has admitted the rightful and just dues of the Operational Creditor in its reply to the Demand Notice, CIRP can be initiated against the Corporate Debtor despite being a government owned company. All the requisite conditions for admission of a petition under Section 9 have been found to be fulfilled and therefore, this petition deserves to be admitted - petition admitted - moratorium declared. - C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the total amount claimed by the petitioner comes to a tune of ₹ 2,39,78,264/-. 4. The counsel for the petitioner further submitted that a Demand Notice dated 26.06.2018 was issued by the petitioner to the respondent inter alia calling upon the respondent to repay the unpaid amount. Reply dated 24.07.2018 was received to this Demand Notice from the respondent but no dispute whatsoever was raised by the respondent in response to the said Demand Notice. 5. The counsel for the petitioner has submitted that even if the respondent is a Government company, CIRP can be initiated against it which is evident from a parallel reading of the definitions of Corporate Person and Government Company under IBC and Companies Act. The applicability of the provisions of IBC is clear on this issue and there is no specific exemption for Government Companies under the IBC. Section 2(1) categorically states that the Code applies to all Companies incorporated under Companies Act, 2013 or under any other previous Company Law. 6. In addition to the aforesaid, the counsel for the petitioner also submitted that its claim for interest in terms of the MSME Act is sustainable. It is a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing but an attempt to extort moneys from the Respondent. 10. The respondent submitted that the amount of ₹ 1,18,96,237/- has been claimed by the Petitioner and that the respondent has already paid an amount of ₹ 35,27,009/- to the petitioner under the contract between the parties. The petitioner has accepted these payments without demur and against the invoices raised. He further submitted that the balance amount of ₹ 83,69,228/-is not due and payable as on date for the following reasons: i. As per the contract between the parties, an amount of ₹ 55,23,466/- is payable upon receipt of certificate/inspection report of supplied items from State Agricultural University/Government Engineering College and receipt of full subsidy amount. Till date, such amount has not been received and hence, the amount is not payable to the petitioner. The respondent has informed the petitioner about the same and the petitioner is aware of the same. Out of the amount of ₹ 55,23,466/- an amount of ₹ 8,52,105/- is withheld also on grounds set out in para (vi) below. ii. As per the contract between the parties, an amount of ₹ 15,95,571/- is payable on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it A of the copy of petition are barred by the law of limitation. Hence, the same are not payable by the respondent to the petitioner and therefore, claim in respect of these invoices is bad in law and not maintainable. 7. The counsel for the respondent submitted that since the above amount of ₹ 1,18,96,237/- less the amount of ₹ 35,27,009/- which has already been paid by the Respondent, is not due and payable to the petitioner as set out above, the claim for interest thereon is also untenable. Even as per Section 15 of the MSME Act, where an MSME supplier supplies goods to any buyer, the buyer is supposed to make payment thereof on or before the date agreed between the parties. The amount claimed by the Petitioner from the Respondent is neither due nor payable. Hence, interest cannot be levied thereon. In any case, the alleged interest rate charged by the Petitioner is usurious and not enforceable. 8. Further, the counsel submitted that, the respondent has filed a reply dated 24.07.2018 in response to Form 3 issued by the petitioner pointing out that the amount claimed is not payable. Despite the same, the petitioner has filed the present petition and incorrect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses of companies, including for MSMEs, under the aegis of public interest while preserving the scheme and objective of the Code. On perusal of this, an exemption has been carved out in Section 29A of the Code to allow promoters in MSMEs to submit a resolution plan in the event that they are not willful defaulters. However, there is no exemption in the provisions of the Code that requires lifting of the corporate veil in the case of a government company to disregard an insolvency plea. Government companies and private companies are placed in the same pedestal under the ambit of the Code. 11. Further, Section 2(45) of the Companies Act, 2013 can be relied upon which defines Government Company as any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments, and includes a company which is a subsidiary company of such a Government company. Section 3(7) of the IBC defines Corporate Person as a company as defined in clause (20) of section 2 of the Companies Act, 2013 (18 of 2013), a limited liability pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his petition deserves to be admitted. Accordingly, we pass following: ORDER (a) The above Company Petition No. (IB)-3270(MB)/2018 is hereby admitted and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against The Maharashtra Industries Development Corporation Limited. (b) This Bench hereby appoints Mr. Ashish Vyas, Insolvency Professional, Registration No: IBBI/IPA-001/IP-P-01520/2018-2019/122267 (ashishvyas2006@gmail.com) as the Interim Resolution Professional to carry out the functions as mentioned under the Insolvency Bankruptcy Code. (c) The Financial Creditor shall deposit an amount of ₹ 2 Lakh towards the initial CIRP cost by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. (d) That this Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal ri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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