TMI Blog2022 (8) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... ee years from 18.08.2019 and the above Company Petition being filed on 29.05.2019 is well within limitation and the contention of the Corporate Debtor on that score is liable to be rejected. Payment of interest - HELD THAT:- It is relevant to mention here that there is a stipulation in the invoices raised by the Operational Creditor for payment of interest @ 24% per annum if the payment was not made on due date by the Corporate Debtor. Therefore, the contention with regard to the entitlement of the Operational Creditor for interest is also liable to be rejected. Pre-existing dispute or not - HELD THAT:- It is observed that the Corporate Debtor did not issue any reply to the Demand Notice nor filed any documents evidencing pre-existing disputes between both parties prior to the Demand Notice and therefore, the plea of pre-existing disputes mentioned by the Corporate Debtor in their reply is only for name sake and is only an afterthought to prevent the admission of the Company Petition. This Bench is of the considered view that there is no substance in any of pleas raised by the Corporate Debtor and the above Company Petition deserves to be admitted - Petition admitted - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation. 5. That after giving several reminders the Proprietorship Firm of the Operational Creditor issued Statutory Demand Notice in Form 3 along with Form 4 dated March 28, 2019 as required under section 8 of the Insolvency Bankruptcy Code, 2016 has been sent by the Indian Post on March 29, 2019 through the Speed Post along with the copy of the Track Report available from the website of India Post as the Proof of Service. The Demand Notice has also been forwarded via E-mail on the registered mail-id mentioned in the Company's Master data on website www.mca.gov.in and also to the concerned persons of the Corporate Debtor on March 28, 2019. 6. That the copy of the Statement of Bank Account of Proprietorship Firm (Madras Steel Tubes) of Operational Creditor with State Bank of India from April 01, 2019 to April 19, 2019 where deposits are made or credits are received normally by the Operational Creditor in respect of Corporate Debtor, reflects that no amount has been received by the Operational Creditor from the Corporate Debtor post the issue of Demand Notice. 7. That the Operational Creditor had reminded several times and again reminded the Corporate Debtor to clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the supply Rate contract does not prescribe any amount of interest that is required to be paid to the operational Creditor. The supply Rate contract (Purchase Order) has been Marked and annexed in the company petition. 5. That the Company Petition filed by the Operational Creditor for the alleged claim is wholly devoid of merits and is liable to be dismissed at the threshold: a. The Operational Creditor is guilty of suppressio veri suggestio falsi and has failed to place on record complete and correct facts with respect to the said Supply Rate Contract issued by the Corporate Debtor to the Operational Creditor which clearly shows an existence of dispute. b. The Operational Creditor was engaged for Supply of Material at project site of Mumbai and UP under the said Supply Rate Contract. In the instant case, the Operational Creditor has allegedly claimed amounts under invoices qua the said supply rate contract. c. The Operational Creditor has failed to place on record complete and correct Facts with respect to the General Terms and Conditions of the Said Supply Contract by which the relationship between both the parties is governed. The terms and condition clearly stipul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was non payment of dues on the ground of breach of the agreement satisfied the test of an existing dispute within the meaning of the Code. 9. In the circumstances aforesaid, the Corporate Debtor respectfully submits that it is apparent that the conduct of the Operational Creditor in filing such insolvency application against the Corporate Debtor is in mala fide as the Company Petition suffers from laches and is barred by limitation. FINDINGS 1. Heard the counsel appearing for the Petitioner and perused the material available on record. Before going into the merits of the matter, it is appropriate to mention here that the Corporate Debtor except filing his reply did not appear before the Bench. 2. The Operational Creditor submitted his arguments on 14.07.2022. Since, the Corporate Debtor was not present on that date, the matter was adjourned from 14.07.2022 to 27.07.2022 with a specific direction that the Corporate Debtor shall appear and address their arguments on 27.07.2022 failing which the argument of the Corporate Debtor would be treated as heard and appropriate order will be passed. Accordingly, the matter was taken up on board on 27.07.2022. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be admitted. 8. Accordingly, the above Company Petition is admitted by passing the following: ORDER a. The above Company Petition No. (IB) 2034 (MB)/2019 is hereby allowed and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against M/s. Kelvolt (India) Private Limited. b. This Bench hereby appoints Mr. Kedarram R Laddha (ip@kpsjca.com), Insolvency Professional, Registration No: IBBI/IPA-001/IP-P00586/2017-2018/11115 as the interim resolution professional to carry out the functions as mentioned under the Insolvency Bankruptcy Code, 2016. c. The Operational Creditor shall deposit an amount of Rs.3 Lakhs towards the initial CIRP costs by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. The IRP shall spend the above amount only towards expenses and not towards his fee till his fee is decided by COC. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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