TMI Blog2021 (2) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... , 46, 49, 50, 65, 66, 53 and 54 and on perusal of these bills, we further notice that while making the payments of these bills, the respondent has not raised any dispute regarding the rate. Therefore, for the first time, the respondent has raised the dispute of rate. It has been established by the Operational Creditor that the application is complete, there is no payment of unpaid operational debt, the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor, and though the reply has been received but it appears from the reply that no dispute in terms of Section 5(6) of the IBC has been raised by the respondent within 10 days from the receipt of demand notice and there is no record of dispute in the information utility. Application allowed - moratorium declared. - COMPANY PETITION (IB) NO. 3042/ND/2019 - - - Dated:- 12-2-2021 - ABNI RANJAN KUMAR SINHA, MEMBER (J) AND L.N. GUPTA, MEMBER (T) For the Appellant : Nikunj Hurria, For the Respondent : Prachi Johri, Advs. and Sartaj Ali, AR ORDER ABNI RANJAN KUMAR SINHA, MEMBER (J) 1. The present petition is filed under Section 9 of Insolvency and Bankruptcy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its total legitimate dues. viii. The Operational Creditor vide email dated 14.09.2018 requested the corporate debtor to clear out standing payment and return the material of Operational Creditor immediately for outstanding payment of ₹ 16,55,125/-. Another email dated 17.11.2018 was sent to Corporate Debtor reminding the corporate debtor for payment and return of shuttering material. ix. Thereafter, the Operational Creditor had served the Corporate Debtor a demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 dated 7.09.2019 demanding payment of an unpaid operational debt due from Corporate Debtor. The said demand notice was also issued through emails. x. The corporate debtor issued a reply to the said demand notice dated 20.09.2019 denying the allegations. xi. Therefore, an amount of ₹ 60,34,306 (₹ 21,62,115 as principal amount in default + ₹ 3,72,191.79 as interest @18% per annum calculated till 06.09.2019 + 35,00,000 (approx. cost of rental scaffolding/ shuttering material) and further interest @18% till the date of actual realisation is due and payable by the corporate debtor to the Operational Creditor. Due date of defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was not legally due to the applicant. x. Corporate Debtor has never purchased the scaffolding and shuttering material from the applicant and furthermore, the applicant has already taken back the scaffolding and shuttering material from the respondent. xi. The absence of any dispute by the alleged Corporate Debtor is a sine qua non for initiating its corporate insolvency resolution process. xii. No operational debt is due in terms of section 5(21) of Insolvency and Bankruptcy Code, 2016. xiii. The demand notice attached to this application is sent by the some sole-proprietorship firm i.e. M/s. Varun Shuttering Stores, who is not a person under IBC, 2016. Such demand notice is non est in law. 5. We have heard the Ld. Counsel for the applicant as well as respondent and perused the averments made in the application. 6. Ld. Counsel for the applicant, in course of his arguments submitted that there was an oral agreement between the parties regarding the supply of scaffolding and shuttering material on rent and accordingly, the applicant had supplied the material and raised the invoices. He further submitted that the payment towards some of the invoices have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is at page 104 of the paper book. We notice in para (b) of the reply that the respondent has taken a defence of no prior agreement in writing and in para (d) of the reply, the respondent has taken a defence that the bills/invoices annexed with demand notice are not as per the agreed rates and the payment due has already been released but nowhere in the reply, the respondent has made what was the agreed rate and how the invoices raised by the applicant are not in terms of the agreed rates. 14. We further notice that in support of these averments, the respondent has not enclosed any correspondence, which was made between the parties prior to raising the dispute in reply to the demand notice regarding the rates. 15. At this juncture, we would also like to refer the reply filed by the respondent and we notice that in para 13 of the reply, the respondent has referred to certain bills and admitted that against these bills, the respondent had made the payments which shows that on the oral agreement, both the parties had acted upon. Therefore, in our considered view, the respondent at this stage cannot take a defence that there is no written agreement. 16. We further notice that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application and initiate CIRP against the respondent/ corporate debtor. Since the applicant has not proposed the name of the IRP, we appoint Ms. Sunita Umesh, Registration No.- IBBI/IPA-001/IP-P00080/2017-18/10165, Email id: - sunita.umesh@uccglobal.in. Mobile No.- 9810266702 as IRP. A moratorium in terms of Section 14 of the IBC, 2016 shall come into effect forthwith staying: - (a) 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; (b) transferring, encumbering, alienating or disposing of by the corporate debt or any of its assets or any legal right or beneficial interest therein; (c) 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 Securitisation 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. Further: (2) The sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
