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TMI Blog2022 (8) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... is the Proprietor of the Proprietary Firm in the trade name of M/s Banganga Minerals, engaged in the business of trading of minerals and pet coke. The principal place of the business of the same is located at Haweli Raja Udai Singh, Tripolia Bazaar, Jaipur, Rajasthan- 302002. 3. The Corporate Debtor namely M/s Gotan Limes Pvt. Ltd. is a company incorporated on 20.02.1978 holding CIN: U14101RJ1978PTC001775 having authorised share capital of Rs. 1,50,00,000/-. The registered office of the Corporate Debtor is situated at Plot No. 3, C-2, Saboo Sadan Manji Ka Hatha, Paota, C Road, Jodhpur- 342001 IN (Rajasthan) 4. The details of the transactions leading to the filing of this application averred by the Applicant are as follows: a. The Corporate Debtor had approached the Operational Creditor requesting for supply of Pet Coke, Steam Coal and other allied minerals in response to which, the Operational Creditor had supplied Pet Coke, Steam Coal and other allied minerals to the Corporate Debtor from time to time. The said supply was made during the period starting from 02.04.2021 to 17.11.2021. Various invoices of different dates spanning across the aforesaid period were raised by the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est @ 14% from the date of default till the date of sending notice u/s 8 of IBC, 2016 and further, interest thereon till the date of actual realisation. 2. Amount claimed to be in default and the date on which the default occurred (attach the workings for computation of amount and date of default in tabular form) Amount Claimed to be in default is Rs. 1,01,99,509/- (Rupees One Crore One Lakh Ninety-Nine Thousand Five Hundred Nine Only) and the date of default is 08.10.2021. 5. Consequent to the notice issued by this Adjudicating Authority, the Respondent filed its reply vide Dairy No. 1337/2022 dated 04.05.2022 stating as follows: a. The Corporate Debtor has submitted that the application filed by the Applicant is not maintainable under the eyes of law as the Applicant has not come before this Tribunal with clean hands. It is also submitted that the entire application is nothing but a gauntlet of lies falsehood, suppression etc to conceal material facts. b. The Corporate Debtor has submitted that the said amount as alleged by the Applicant does not fall under the definition of Operational debt as stated under Section 5(21) of IBC, 2016. It is also submitted that this appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,467/- (Rupees Twenty-Six Lakhs Fifty-Six Thousand Four Hundred and Sixty-Seven Only) was due in respect of the supplies made during the preceding financial year. This fact is apparent from the copy of the ledger account of the Corporate Debtor in the books of account of the Applicant which has been placed on record as Annexure- 8 at page No. 208-209. b. It is also submitted that the Operational Creditor served a demand notice dated 14.12.2021 u/s 8 of IBC, 2016 in Form 3 (Rule 5 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016) demanding payment of unpaid operational debt amounting to Rs. 1,01,99,509/- (Rupees One Crore One Lakh Ninety- Nine Thousand Five Hundred Nine Only) within 10 days from the receipt of the aforesaid notice failing which the Operational Creditor shall and would initiate a CIRP. The said demand notice was sent and delivered by a postal and Email services on the registered address and registered email address as appearing in the Master Data of the Corporate Debtor. c. The Applicant has submitted that the allegations regarding defect in quality of goods supplied by the Applicant is clearly an afterthought inasmuch as no notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount against which this Application has been filed is Rs. 1,01,99,509/- (Rupees One Crore One Lakh Ninety-Nine Thousand Five Hundred Nine Only). It is also seen from Annexure 9 at page 210 that the Applicant had maintained the ledger account with the Corporate Debtor which was sent to the Corporate Debtor and the same was duly received and acknowledged by the Corporate Debtor on 01.12.2021. In the said ledger, the closing balance showing on the credit side is Rs. 1,01,99,509/- (Rupees One Crore One Lakh Ninety-Nine Thousand Five Hundred Nine Only). Therefore, there is no iota of doubt that the Corporate Debtor has defaulted in repayment of the aforesaid amount. 12. Bare perusal of Section 5 (21) of IBC makes it clear that Operational Debt means a claim in respect of the provisions of goods of services arising in respect of dues arising under any law for the time being enforced. From the facts of the case it is clear that the Applicant was supplying Pet Coke, Steam Coal etc. to the Corporate Debtor against which it had also raised invoices which have been annexed at Annexure 2 of the Application. Copy of E-way bills have also been annexed at Annexure 3 of the petition which show th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, the defence has to be plausible and while not examining it on merits, it must not appear as a moonshine defence. 16. Therefore, in the present matter at hand, there is a clear debt, repayment of which has been defaulted by the Corporate Debtor and there appears to be no pre-existing dispute between the parties. Any allusion to such dispute appears to be confirmed. 17. Under sub-section (4) of Section 9 of the Code, the Operational Creditor may propose the name of a Resolution Professional to be appointed as Interim Resolution Professional ('IRP') but it is not obliged to do so. In view of the IA (IBC) No. 163/JPR/2022, Mr. Chand Prakash Bhatia, duly registered with the Insolvency and Bankruptcy Board of India, with Registration No. IBBI/IPA/001/IP-P-02629/2021-22/14034 (email: [email protected]), is hereby appointed as the IRP. The IRP is directed to take all such steps as are required under the statute, inter-alia in terms of Sections 15, 17, 18, 19, 20 and 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, and Rules and Regulations thereunder. 18. Consequences of initiation of CIRP shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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