9911796707
TMI Blog2018 (1) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... 986PTC039258 and having its registered office at Maharashtra 410208. The Corporate debtor is Pearson Drums & Barrels Private Ltd. whose identification No. Is U28992WB1989PTC046520 having its registered office at Kolkata. The petitioner is engaged in the business of manufacturing and trading of metal and plastic barrels and drums and trading of iron and steel products, and in the usual course of business, the corporate debtor approached the operational creditor for the purchase of C.R Coils. The petitioner had supplied the goods to the corporate debtor and had raised invoices upon the corporate debtor from time to time. True copies of the invoices are annexed and marked as Annexure 'B'. 3. The petitioner has stated that the Corporate Debtor made default in the payment of Rs. 8,82,11,723(Rupees Eight Crores Eighty-Two Lakhs Eleven Thousand Seven Hundred Twenty Three only) inclusive of interest @21% p.a as on August 09, 2017. All the details of the amount in default and dates on which default occurred is marked and annexed as Annexure-'A'. The petitioner has further stated that the corporate debtor has to make payment to the petitioner creditor. Pursuant to the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e debtor and the statement of accounts was received and accepted by the corporate debtor without any protest/ demur. True copy of the email dated December 14, 2015, along with its attachments is marked as Annexure 'E'. The petitioner has further stated that the corporate debtor did not pay the outstanding dues in spite of receiving demand notice dated 09/08/2017. A copy of the demand notice is annexed with the application as Annexure L. The petitioner has stated that total outstanding dues in the notice were Rs. 8,82,11,723/- (Rupees Eight Crores Eighty-two thousands eleven thousand Seven hundred twenty-three only). A copy of the statement of account from Bank/Financial Institutions showing the due is annexed with the application and marked as Annexure N. Even after receipt of the demand notice; the corporate debtor failed to make payment the outstanding dues. Therefore, the petition was filed for initiation of corporate insolvency process against the corporate debtor. 6. Petitioner has also filed the authorisation letter which shows that the petitioner company by its resolution dated 02/08/2017 had authorized Mr Haresh J Dharmani, Director to institute an application of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lvent and Bankrupt. 10. The corporate debtor also stated that the Petitioner had not submitted any VAT audit report in form 704 prescribed by MVAT Act, 2002 and more particularly declaration in Format J, thus making it uncertain whether set off credit is available to the corporate debtor for such collection of the VAT. The corporate debtor also stated that list of invoices was erroneous and therefore, not tenable. The corporate debtor lastly, submitted that the petitioner has submitted forged tax invoices and thus has committed a criminal offence which is subject to serious legal action. 11. Heard arguments of both the parties at length. On the side of one Mr Jyotirmoy Begchi, CFO of the corporate debtor appeared and argued the case for and on behalf of the corporate debtor. Upon hearing the argument and considering the contentions and on perusal of the records the point that arises for consideration is: Whether the corporate debtor succeeded in proving discharge of outstanding dues as alleged? If not whether there exists a genuine dispute as alleged by the corporate debtor as alleged? 12. The petitioner has filed this petition under Sec.9 of the I & B Code, 2016. Here, in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating Authority with malafide intention to grab money from the corporate debtor and not attempted to substantiate its claim that any pre-existing disputes are in existence. No supporting proof produced to prove that corporate debtor had discharged all of its dues payable to the petitioner as alleged in the para 7 of the reply. Nothing produced to prove that claim is barred by limitation as alleged in para 5 of the reply. The attempt of the Ld. CFO was that claim made by the petitioner is against specific bills which are more than three years old and therefore, time-barred as per provisions of the Limitation Act, 1962. As per the averment in the reply affidavit, the corporate debtor raised no serious disputes against the statement of account issued to it on 20.08.2017 against the invoices raised by the petitioner showing the default of debt due in the instant case. The corporate debtor has stated in the reply that the statement so made though matches with the record available to the corporate debtor but contradicts with the claims made earlier on 26.07.2017. 16. It has come out in evidence that petitioner has also issued a demand notice on 26.07.2017 (Exhibit J at page 85) cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of State Tax (GST ADM), Maharashtra proves the contention on the side of the petitioner that corporate debtor availed st off from the said authority for the purchase of goods made from the Petitioner. It is an indication that the goods which were delivered to the corporate debtor and the demand made by the petitioner is genuine and those entire goods purchased by the corporate debtor was utilized by it. Raising of quality issue and the alleged return of goods and sending debit notice are all factors seems to have raised in the reply for the sake of objection. No materials are available to prove that any further investigation regarding the demand made is necessitated or that the dispute raised is genuine. What is meant by existence of dispute to be established on the side of the Corporate Debtor in a case of this nature is dealt with in Mobilox Innovations Private Limited Vs Kirusa Software Private Limited (C.A.No/405 of 2017 SC) by the Hon'ble Supreme Court. It is significant to read Para 40 of the said Judgement. It reads as follows: "It is clear, therefore, that once the operational creditor has filed an application which is otherwise complete, the adjudicating au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 right or beneficial interest therein; any action to foreclose, recover or enforce any security interest 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 and the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. (ii) That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period. (iii) That the provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (iv) That the order of moratorium shall affect the date of passing of the order till the completion of the corporate insolvency resolution pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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