TaxTMI 
TaxTMI 
2017 (10) TMI 34
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....being Rs. 8,50,79,000/-. It is also stated in the application that the registered office of the 'Corporate Debtor' is located at 606, Tolstoy House, 15, Tolstoy Marg, Delhi-110001. Under Part-III of the said application, no Insolvency Resolution Professional (IRP) has been proposed and in Part-IV details of transactions giving rise to debt and the amount due to the 'Operational Creditor' by virtue of the said transactions are given. It is averred therein that the 'Operational Creditor' had supplied aluminum ingots and scraps to the 'Corporate Debtor' based on purchase orders placed by respondents vide numerous emails as well as based on telephonic conversations. Based on the same, it is averred by the 'Operational Creditor' that supplies were effected and invoices were also raised for the products supplied from time to time as detailed in Annexure-A to the application. An aggregate amount of the said invoices raised between 23.4.2016 and 6.12.2016 amounts to Rs. 9,33,23,904/-. 2. Against the value of goods supplied, it is contended by the 'Operational Creditor' that 4 cheques dated 27.12.2016 by way of part payment in relation to t....
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....d by the 'Operational Creditor' that it was followed up with a complaint under Section 138 of the Negotiable Instrument Act, 1881 before Tis Hazari Court, Delhi in the month of June, 2017. 3. Meanwhile, it is averred that the 'Operational Creditor' had also issued a notice, as mandated under Section 8 of the IBC, 2016 bringing to the notice of the 'Corporate Debtor' about the default committed in Form-3 prescribed under AAA Rules, 2016 demanding payment of an unpaid operational debt on 9.5.2017 under the hand of 'Operational Creditor' itself. In relation to the said notice of default, the 'Corporate Debtor' is said to have responded vide its reply dated 22.5.2017 issued under the hand of its counsel wherein, the amount claimed to be in default had been vehemently disputed and on the other hand a counter claim in a sum of Rs.l,54,55,652 is claimed to be due to the 'Corporate Debtor'. The 'Operational Creditor' as mandated under Section 9(3)(c) of IBC, 2016 has also filed as evidenced from Annexure-K a certificate from the bankers in relation to the unpaid liability of Rs. 11,12,50,358/-. 4. In relation to the above applic....
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....000/- and after the receipt of payments by the 'Operational Creditor', a sum of Rs. 1,54,55,652 is lying in balance to the credit of the 'Corporate Debtor' with the 'Operational Creditor' and in the circumstances, there is no default as nothing is due to the 'Operational Creditor' for and on behalf of the 'Corporate Debtor'. 5. From the records it is seen that the Petitioner has also filed rejoinder to the reply as filed by the 'Corporate Debtor'. Apart from reiterating the averments contained in the application/petition, the 'Operational Creditor' submits that by virtue of take over agreement entered into between J.P. Engineers (partnership firm) and the Corporate Debtor, the entire running business of J.P. Engineers namely the firm have been taken over by the 'Operational Creditor' on 4.11.2016 and in the circumstances it is contended by the 'Operational Creditor' that it has stepped into the shoes of the firm namely J.P. Engineers and hence is entitled to prosecute in relation to the outstanding balance in the books of the said firm in terms of the takeover agreement. It is further contended that in view ....
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....visions of IBC, 2016 read with rules, an advocate or lawyer or Chartered Accountant or Company Secretary in absence of any authority of the Board of Directors and holding no position in relation to the 'Operational Creditor' cannot issue any notice under Section 8 of IBC, 2016 and a distinction has been drawn in the said judgment in relation to lawyer's notice and a notice given by an 'Operational Creditor'. In this connection, perusal of the application and annexure shows that notice under Section 8, as mandated, under IBC, 2016 and required to be given by an 'Operational Creditor' enclosed as Annexure-I to the petition has been issued by one Mr. Sharad Tyagi, Advocate, on behalf of the Petitioner/'Operational Creditor' namely J.P. Engineers Pvt. Ltd which is evident from the signature on notice and vakalath. However, no authorization has been produced by the 'Operational Creditor' in terms of the above judgment referred to authorizing the said Advocate namely Mr. Sharad Tyagi to issue the notice under Section 8 for and on behalf of 'Operational Creditor'. Thus, taking into consideration the provisions of IBC, 2016 as well as the....