TaxTMI 
TaxTMI 
2018 (2) TMI 196
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....lying industrial gases, including oxygen, Nitrogen, Argon, Hydrogen, Acetylene and such other gases. It has his factory and supply arrangements made at Patalganga, Dolvi, Jejuri in Maharashtra, Hazira in Gujarat, Bellary in Karnataka and other locations. 3. Mr. Unmesh Potphode, Senior Manager, Business Development has been authorized by the Board Resolution dated 17.03.2016 to sign and submit the petition. 4. The Corporate Debtor 'Twenty First Century Wire Rods Limited' has been incorporated on 08.10.1996. Its CIN number is U27100DL1996PLC082467. Its authorized share capital is 15,00,00,000/- and paid up share capital is Rs. 14,50,00,000/-. It has its registered office at E-220, Greater Kailash-I, New Delhi-110048 and Corporate office at 506, 5th Floor, Meadows, Sahar Plaza Complex, JB Nagar, Andheri-Kurla Road, Andheri (East), Mumbai-400059. 5. The case of the 'Operational Creditor' is that it has entered into a Liquid Supply Agreement (for brevity 'LSA') and Equipment License Agreement (for brevity 'ELA') with 'Corporate Debtor' on 29.03.2012 for supply of products such as liquid oxygen, liquid nitrogen and liquid argon and license for storage equipment for storing of th....
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.....04.2016, with the endorsement that payments had been stopped by the Corporate Debtor. Thereafter Operational Creditor had sent a notice dated 15.04.2016 to the Corporate Debtor under Section 138 of the Negotiable Instruments Act, 1881. Response to the said notice was sent on 12.05.2016 by the Corporate Debtor wherein apart from raising a number of baseless and unwarranted allegations, nothing substantial had been brought on record. Proceeding under Section 138 of Negotiable Instrument Act with respect to aforesaid cheque is pending before the Competent Court. 11. The Operational Creditor has issued a notice dated 01.08.2016 under Sections 433(e) and 434 of the Companies Act, 1956 for winding up of the affairs of the Corporate Debtor. Response to the said notice was purportedly sent on 07.08.2016, however, the same was only received on 08.09.2016, whereby the Corporate Debtor had raised the illusory defence that there was no outstanding debts payable to the Operational Creditor. 12. Thereafter in compliance of Section 8(1) of the Code the Operational Creditor issued a demand notice on the Corporate Debtor which was served on the Corporate Debtor on 22.03.2017. The Corporate D....
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....ssurance to start making the outstanding payments annexed herewith and marked as Annexure-II/I. (10) A copy of the Email dated 17.11.2015 along with account summary is annexed herewith and marked as Annexure-II/J. (11) A copy of the emails dated 09.06.2016, along with account summary is annexed herewith and marked as Annexure-II/K. (12) A copy of the cheque return memo dated 05.04.2016 issued by Axis Bank indicating the stop payment instruction issued by TFC along with a copy of the cheque annexed herewith and marked as Annexure-II/L. (13) A copy of notice dated 15.04.2016 issued by the counsel for Inox to TFC under Section 138 of the Negotiable Instruments Act, 1881 annexed herewith and marked as Annexure-II/M. (14) A copy of TFC's reply dated 12.05.2016 to the section 138 notice issued by the Counsel for TFC annexed herewith and marked as Annexure-II/N. (15) A copy of letter dated 01.08.2016 issued by the counsel for Inox to TFC under Section 433(e) r/w Section 434 of the Companies Act, 1956 ('Winding up notice') annexed herewith and marked as Annexure-II/O. (16) A copy of TFC's reply dated 07.08.2016 to winding up no....
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....ompanies Act, 1956 for winding up of the affairs of the 'Corporate Debtor' was issued. In reply illusory defence was set up stating that there was no outstanding debts payable to the 'Operational Creditor' but same was not supplemented with even an iota of proof, inasmuch as no document/record or other financial statement had been provided which would fortify submission of the Corporate Debtor. He then also has drawn our attention to response to the notice under Section 8 of the Code received by him on 31.03.2017 and submitted that the Corporate Debtor had sought for an extension for filing the response without any justifications whatsoever, therefore, Corporate Debtor failed to respond the notice within the statutory period of ten days as prescribed under the Code and the response dated 04.04.2017 which was received from the Corporate Debtor after the prescribed period of ten days, cannot be considered as a response to the notice. 16. The averment further is that on the one hand in response to the notice issued under Sections 433 and 434 of the Companies Act, 1956 the Corporate Debtor had indicated that it had made all payments to the Operational Creditor and on the other hand ....
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....learned counsel for the parties and have perused the pleadings along with various affidavits with their able assistance. As per the invoices issued by the Operational Creditor with regard to supply of different types of gases to the Corporate Debtor it is proved beyond doubt that 'goods' in terms of Section 5(21) of the Code were procured by the Corporate Debtor from the Operational Creditor. For determination of the issue it would be necessary to examine the definition of the expression 'Operational Debt' given in Section 5(21) of the Code and the same is set out below:- Section 5(21) (21) "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority. The definition of operational debt postulates that it is a claim in respect of the provision of 'goods' or 'services' including employment etc. A perusal of the invoices issued by the Operational Creditor in the name of Corporate Debtor unfolds that Operational Creditor has supplied different type....
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....fence now set up is not persuasive for us to take a view against the petitioner and reject the claim made by it. The issue concerning existence of dispute came up for consideration before Hon'ble the Supreme Court in the case of Mobilox Innovations (P.) Ltd. v. Kirusa Software Private Limited in Civil Appeal No. 9405 of 2017 decided on 21.09.2017 and in para 40 of the judgment Hon'ble the Supreme Court has laid down the following principles of law which reads thus:- "40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is no....
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....d has requested us to appoint an Interim Resolution Professional. 26. As a sequel to the above discussion, this petition is admitted. 27. The Insolvency and Bankruptcy Board of India vide its letter dated 01.01.2018 has recommended a panel of Insolvency Professionals for appointment as Insolvency Resolution Professional in compliance with Section 16(3)(a) of the Code in order to cut delay. The list of recommended Insolvency Professionals provides instant solution to the Adjudicating Authority to pick up the name and make appointment. It helps in meeting the time line given in the Code and the unnecessary time wasted firstly in asking the Insolvency and Bankruptcy Board of India to recommend the name and then to appoint such Interim Resolution Professional by Adjudicating Authority. Accordingly, we appoint Mr. Sachin Sapra, email id [email protected] (Mobile No. 9910219977) as an Interim Resolution Professional. His registration number is IBBI/IPA-002/IP-N00005/2016-17/10005. The aforesaid Interim Resolution Professional has no disciplinary proceeding pending against him nor anything else has been pointed out with regard to his antecedents. The Interim Resolution Professio....