TMI Blog2022 (11) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... n under section 9 filed by the Operational Creditor to initiate the CIRP against the Corporate Debtor. On perusal of the documents submitted by the Applicant, it is clear that Operational debt amounting to more than Rs.1,00,00,000/- is due and payable by the Corporate Debtor to the Applicant. There is default by the Corporate Debtor in payment of debt amount. Therefore, there are no objection on record against the application filed for initiation of CIRP against the corporate debtor. Hence, the Application filed by the Operational Creditor is liable to be admitted - the application is complete and has been filed under the proper form. The debt amount is more than Rupees One Crore and default of the Corporate Debtor has been established. Petition admitted - moratorium declared. - CP (IB) No. 1057MB-IV/2021 - - - Dated:- 3-11-2022 - Mr. Manoj Kumar Dubey Hon ble Member ( Technical ) And Mr. Kishore Vemulapalli Hon ble Member ( Judicial ) For the Petitioner : Mr. Sandeep Grover a/w Mr. Tarang Agarwal , Advocates For the Respondent : Mr. Ruchir Tolat a/w Mr. Raj Adhia , Advocates ORDER Per : Kishore Vemulapalli , Member ( Judicial ) 1. This is an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m till 30.09.2021) Total Amount due (In INR) 0497/19-20 01.02.2020 1430626 18% 428247.00 0551/19-20 05.02.2020 770106 18% 229006.00 0552/19-20 05.02.2020 1929034 18% 573637.00 0691/19-20 14.02.2020 71014 18% 20802.00 0692/19-20 14.02.2020 1326536 18% 388584.00 0693/19-20 14.02.2020 1779754 18% 521346.00 0748/19-20 18.02.2020 560477 18% 163076.00 0749/19-20 18.02.2020 2909366 18% 846506.00 0827/19-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he outstanding debt which admittedly remains outstanding as per the books of account of the Corporate Debtor as well. g) The goods supplied to the Operational Creditor in lieu of the outstanding invoices do not suffer from any quality issues. This stems from the fact that the Corporate Debtor has admitted his liability to pay the outstanding dues to the Operational Creditor by way of letter dated 23.07.2021 addressed to Citi Commercial Bank. h) Seeing no result in pursuing the Corporate Debtor to clear the outstanding dues, the Operational Creditor issued a Demand Notice u/s 8 of the Code in Form-3 dated 14.08.2021 demanding and recalling for outstanding dues alongwith interest to the extent of Rs.2,07,11,209.00 towards 18 outstanding invoices. i) Despite receipt of aforesaid Demand Notice dated 14.08.2021, the Corporate Debtor failed to: - a. Respond to the Demand Notice; b. Raise any pre-existing dispute as per terms of the code; and c. pay the outstanding amount due. Reply of the Corporate Debtor 6. The Corporate Debtor has filed Affidavit in Reply dated 20.01.2022 thereby vehemently stated that the Company Petition is not maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of acknowledged the said disputes raised by the Corporate Debtor, however, expressed its inability to sort out the same. Rejoinder of the Operational Creditor 10. The Operational creditor filed affidavit in rejoinder thereby denying all the allegations, contentions levelled in affidavit in reply. 11. The Operational Creditor submits that the issue with regard to Jurisdiction of Invoices, he states that pursuant to section 408 of the Companies Act, 2013, this Tribunal has been constituted in different states. In this regard, the Adjudicating Authority, in relation to insolvency resolution and liquidation of corporate persons including corporate debtors and personal guarantor thereof shall be the National Company Law Tribunal having territorial jurisdiction over the place where the registered office of the Corporate Person is located. In this case, the registered office of the Corporate Debtor is located in Mumbai, therefore, this Hon ble Tribunal has jurisdiction to entertain this Petition. 12. To support the aforesaid contentions, the Operational Creditor placed reliance of Hon ble NCLAT in the case of Famous Innovations Digital Creative Private Limited Vs. Mode A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations exchanged between he parties. Thus, reliance sought to be placed by Corporate Debtor on communications dating back to September, 2020 is merely an afterthought so as to misrepresent the facts before the Hon ble Tribunal. Even if it is assumed that the Corporate Debtor was dissatisfied with the quality of the products/goods supplied by the Operational Creditor, it would not have continued to place orders and obtain the goods from the Operational Creditor and also pay 15% extra on new orders to reduce the outstanding debt. 15. The Operational Creditor also relied on Mobilox Innovations Private Limited Vs. Kirusa Software (P) Limited, wherein the Hon ble Supreme Court of India held that a pre-existing dispute should truly exist in the fact and should not be merely spurious, hypothetical or illusory. In this case as highlighted in preceding paras, no dispute, much less preexisting dispute existing between the parties on the date of issuance of the Demand Notice and/or filing of the petition. 16. The contention of the Corporate Debtor with regard to letter dated 23.07.2021, addressed by the Corporate Debtor to the Citi Bank only confirms the factum of the invoices issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Debtor vehemently denied the fact that the letter sent to CITI Commercial Bank amount to acknowledgement of debt. On perusal of letter dated 23.07.2021, this Bench observed that the contents written in the letter dated 23.07.2021, clearly shows that the Corporate Debtor acknowledged the invoices as per their books of account as on 23.07.2021 and also promised/confirmed that they will clear the said invoices. Hence, the contention with regard to pre-existing dispute is not sustainable on perusal of letter dated 23.07.2021 and hence rejected. 23. The letter addressed to CITI Commercial Bank is reproduced hereinunder: - To, Citi Commercial Bank Kind Attn: Mr. Amit Khanduri, Sub: Old Outstanding against Sterling Enamelled Wires (P) Ltd. Dear Sir, We certify that the following invoices amounting to Rs.2,07,11,209/- raised by Sterling Enamelled Wires (P) Ltd. upon us, are outstanding as per out books, as on today 23.07.2021. We hereby confirm that we shall clear the said invoices, at the earliest. Inv. No. Invoice Date Amount 0497 01.02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmation of dispatch so that we can release you balance 7.5% payment of Rs.3,94,000/- as agreed by us. Thanks, and regards. Aarti 25. On perusal of the aforesaid email, this Bench observed and have the clear picture in mind that the Corporate Debtor acknowledges the amount due which is to be repaid by the Corporate Debtor to the Operational Creditor. Thus, it clearly shows that there is a clear debt and default by the Corporate Debtor in repaying the outstanding amount with respect to pending invoices (supra) to the Operational Creditor. 26. On perusal of the records, it is found that the Petition was filed on 21.10.2021 and the Corporate Debtor acknowledges his liability on 23.07.2021, thus Petition is filed well within the prescribed period of Limitation i.e. 3 years as provided under Section 18 of Limitation Act, 1963. 27. After perusal of the material on record, this Bench is of considered view that the there is no reason to deny the Petition under section 9 filed by the Operational Creditor to initiate the CIRP against the Corporate Debtor. 28. On perusal of the documents submitted by the Applicant, it is clear that Operational debt amounting to more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall have effect from the date of this order till the completion of the CIRP or until this Tribunal approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. (e) Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC read with regulation 6 of the Insolvency Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (f) Mr. Rakesh Kumar Tulsyan, registration No. IBBI/IPA-001/ IP-P01144/2018-2019/11970; Email: tulsyanrk@gmail.com is appointed as Interim Resolution Professional to carry the functions as mentioned under IBC, the fee payable to IRP/RP shall comply with the IBBI Regulations/Circulars/Directions issued in this regard. The IRP shall carry out functions as contemplated by Sections 15,17,18,19,20,21 of the IBC. (g) During the CIRP Period, the management of the Corporate Debtor shall vest in the IRP or, as the case may be, the RP in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession ..... X X X X Extracts X X X X X X X X Extracts X X X X
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