TMI Blog2022 (9) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Debtor claimed that an amount of Rs. 1,31,82,987/- has been paid. As per the ledger account from 01.04..2015 to 14.10.2019 more than Rs. 23,00,000/- is still due and payable by the Corporate Debtor to the Operational Creditor. It is not a disputed fact that the Corporate Debtor has not raised any disputes with respect to the invoices raised by the Operational Creditors. Moreover, Corporate Debtor vide letter dated 26.09.2017 itself admitted that Rs. 67,65,986/- has been withheld on account of gross subsidy charges, additional surcharge and electricity supplied. The present application is defect free as per section 9 (5) of the IB Code, and the outstanding amount meets the threshold limits as section 4 of the IB Code - Application admitted - moratorium declared. - CP ( IB ) 819 of 2019 - - - Dated:- 20-9-2022 - Dr. Madan B. Gosavi, Hon ble Member (J) And Kaushalendra Kumar Singh, Hon ble Member (T) For the Operational Creditor : Mr. Kunal Vaishnav, Ld. Adv For the Corporate Debtor : Mr. Vijay H Patel, Ld. Adv ORDER 1. The instant application is filed on 15.11.2019 by M/s. Bhadreshwar Vidyut Private Limited (formally known as OPGS Power Gujarat Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot levied on the power procured from the private generator of electricity. The Operational Creditor has supplied electricity to the Corporate Debtor under the Group Captive Model. Under the Group Captive Model, the tariff charged by the electricity generating company is much less as compared to that of the Government Company. The units of electricity purchased under the Group Captive Model from the private entities are given as credit by the distribution company in the present case Paschim Gujarat Vij Corporation Limited [ PGVCL ]. Therefore, the Corporate Debtor is required to pay an amount for which the PGVCL has given a credit to the Operational Creditor. (iv) The Operational Creditor had supplied electricity to the Corporate Debtor only for a period of three months i.e. April 2015 to June 2015. During that period the Operational Creditor supplied 3077525 KWh electricity to the Corporate Debtor. The details of supplied electricity by the Operational Creditor are as hereunder month-wise: Month Energy Scheduled Units (KWh) Transmission Wheeling Loss Net Energy Units (KWh) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor is a viable company and it has great commercial prospects. At present, the authorized capital of the Corporate Debtor is Rs.9.25 Crores out of which, the issued and paid-up share capital of the Corporate Debtor is Rs.6,99,56,800/- Moreover, the Corporate Debtor is debt free company, hence, has not lost its financial substratum. In view of the above, neither of the above tests for admission of this application is satisfied. Rather there is a serious dispute with respect to the debt due and payable to the Operational Creditor. 4. The Operational Creditor filed its rejoinder and made the averments which are summarized as under:- (i) This Adjudicating Authority vide order dated 06.01.2021 passed an order to proceed with the matter ex-parte and the Corporate Debtor failed to file the reply as on 15.02.2021. Thereafter, the Corporate Debtor served a copy of the reply to the Operational Creditor on 17.02.2021 that too without filing any application for setting aside the order of exparte dated 06.01.2021. (ii) The Corporate Debtor has suppressed the material facts from this Adjudicating Authority as an undated letter was received by the Operational Creditor in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material on record. It is noted that the Operational Creditor supplied the electricity to the Corporate Debtor in the month of April to June and raised 8 invoices for an amount of Rs.1,59,25,360/- .The Corporate Debtor served the demand notice dated 21.10.2019 issued on 22.10.2019 and the same was delivered on 28.10.2019 to the Corporate Debtor. But the Corporate Debtor neither replied to the Demand Notice nor paid the outstanding amount to the Operational Creditor. 6. It is noted that the contention that the claimed amount is beyond the period of limitation to initiate the CIRP against the Corporate Debtor does not sustain as on 26.09.2017 the Corporate Debtor has acknowledged an amount of Rs.67,65,986/- as at 31.03.2017 withheld by it on account of gross subsidy charge, additional surcharge and electricity supplied, which is duly signed by Shri Sukhdevbhai L Patel Director of the Corporate Debtor. 7. For the adjudication of an application filed under Section 9 of the IB Code, the Adjudicating Authority is required to see that the application is complete and payment has been not made by the Corporate Debtor to the Operational Creditor and the demand notice or invoice is serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the Adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section. 8. As per the submission of the Operational Creditor, the PGVCL had credited 6,28,853 units for April 2015, 12,06,369 units for May -2015 and 8,25,179 units for June 2015. However, as per the submission of the Corporate Debtor, the PGVCL had credited 6,26,572 for April 2015, 12,06,369 units for May- 2015 and 8,25,179 for June 2015. The only difference in the credited units is 2,281 for the month of April 2015. As per the statement given by the PGVCL for the credite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Adjudicating Authority approves the Resolution Plan under sub-section (1) of Section 31 or passes an order for liquidation of Corporate Debtor Company under Section 33 of the Insolvency Bankruptcy Code, 2016, as the case may be. iv) We hereby appoint Mr. Dakshesh Pravinchandra Choksi having Registration No.IBBI/IPA-001/IP-P00718/2017- 18/11300, (E-mail ID: ca.dakshesh@gmail.com) to act as an IRP under Section 13(1)(c) of the Code. He shall conduct the Corporation Insolvency Resolution Process as per the provision of Insolvency and Bankruptcy Code, 2016 r.w Regulation made thereunder: v) The IRP shall perform all his functions as contemplated, interalia, by Sections 17, 18, 20 21 of the Code. It is further made clear that all personnel connected with Corporate Debtor, its Promoter or any other person associated with management of the Corporate Debtor are under a legal obligation under Section 19 of the Code to extend every assistance and co-operation to the Interim Resolution Professional. Where any personnel of the Corporate Debtor, its Promoter or any other person required to assist or co-operate with IRP, does not assist or Co-operate, IRP is at liberty to mak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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