TaxTMI 
TaxTMI 
2018 (3) TMI 318
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.... the following:- The Applicants, Operational Creditors, Mahendra Trading Company and their partners, Mahendra Bajoria, Managing Partner of Mahendra Trading Co., Mr. Pratyush Bajoria, partner of Mahendra Trading Co. and Mrs. Laxmi Bajoria, partner of Mahendra Trading Co. are having their office at 51, Ezra Street, Kolkata- 700 001. The Corporate Debtor is Hindustan Controls & Equipment Private Ltd., whose identification Number is U51109WB2000PTC091319 having its registered office at P-16 & 16/1, Kasba Industrial Estate, Phase-1, Kolkata-700 107. 3. The petitioners have stated that Mahendra Bajoria, Managing Partner of the Applicant/Operational Creditor No.1 and also the Constituted Attorney of the Applicants/Operational Creditors Nos. 3 and 4 has been duly authorised by all the partners of the firm and at the meeting of the partners to that effect. The Resolution taken by the partners at the meeting of the company has been enclosed and marked as Annexure-A to the application. 4. The Operational Creditor has stated that the goods worth Rs. 1,71,81,809/- (One crore seventy-one lakh eighty one thousand eight hundred and nine) only was sold and delivered to the Corporate Debtor....
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....and marked as Annexure -E to the application. 8. The applicant has further stated that though demand notice was issued to the Corporate Debtor on 18th September, 2017 by the Operational Creditor, which was received on or about 22 September, 2017 by the Corporate Debtor but no notice of dispute has been issued by the Corporate Debtor till filing of the application by the Operational Creditor. Even after receipt of the demand notice, the corporate debtor failed to make payment of the outstanding dues. Therefore, the petition has been filed for initiation of corporate insolvency process against the corporate debtor. 9. The applicant/operational creditor has delivered demand notice of unpaid operational debt/copy of Invoices between 22nd June, 2012 to 29th March, 2017 under 35 invoices raised on account of supplies to Corporate Debtor in prescribed manner as specified in clause (a) of sub-rule (1) of Rule 5 of Insolvency and Bankruptcy (Application to Adjudicating Authorities) Rules, 2016, under Section 8(1) of the Insolvency and Bankruptcy Code, 2016. 10. The petitioners have submitted a statement of bank account where deposits are made or credits received normally by the Ope....
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.... said Calcutta Electric Trader Association have been annexed and marked as Annexure "A" and "B" to the reply filed by the Corporate Debtor. Therefore, the instant application may not be entertained as the same arbitral proceedings is a dispute as specifically enshrined in the I.B. Code. 15. The Corporate Debtor has also submitted that the claim of the Operational Creditor is illegally inflated as the amount of dispute before the Arbitration Committee of the Calcutta Electric Traders Association (in short 'the Association') was Rs. 1,51,17,694/- as on 31st August, 2017 whereas before the Tribunal, it has been claimed as Rs. 1,71,81,809/- as on 18th September, 2017. Moreover, the Corporate Debtor has also raised objection to the extent that a portion of the purported claim of Rs. 1,71,81,809/- is barred by the Limitation Act, 1963 as the same arises out of invoices raised amounting to Rs. 27,66,630/- for the claim during the period 22nd June, 2012 to 20th March, 2014. 16. The Corporate Debtor has stated that a Memorandum of Understanding was executed between the Operational Creditor No.1 and the Corporate Debtor on 1st January, 2014, when the Corporate Debtor was in acute finan....
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.... and Mr. Gupta to the third parties, despite the fact that the Operational Creditor No. 3 did not have the power and authority to provide financial assurances to third parties. Even the other directors and shareholders of the Corporate Debtor were always kept in dark with regard to the decisions taken by them. In this context, copies of the said documents have been annexed and collectively marked as Annexure 'E' to the Reply of the Corporate Debtor. 21. Corporate Debtor has also stated that the use of the stamp and seal by the petitioner No.3 is unauthorised and a misappropriation of the Debtor's property, which is evident from perusal of the challans and the Approval and Requisition Letters for payments to the third parties. The Corporate Debtor has also claimed that it is also evident from the above fact that the Operational Creditor No.3 had and still has full access to the official stamp and seal of the Corporate Debtor. The copies of the same signed by the Operational Creditor No.3 have been annexed and collectively marked as Annexure 'F' to the Reply. 22. It is further stated by the Corporate Debtor that bona fide of the remaining directors of the Corporate Debtor would....
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....btor. Mr. Samrat Gupta had no authority to sign the purported letter dated 1st April, 2017 or to send the electronic mail dated 30th August, 2017. Even there was no Board Resolution authorising Mr. Samrat Gupta to issue such communications. 25. The Corporate Debtor has further submitted that the purported confirmation of overdue could not have been made by the Corporate Debtor on 1st April, 2017 as the last invoice raised by the Operational Creditor No.1 was dated 29th March, 2017. The said Mr. Samrat Gupta clandestinely issued the electronic mail dated 30th August, 2017 from the e-mail ID of the Corporate Debtor as he had access to the seal and e-mail IDs of the Corporate Debtor. 26. The Corporate Debtor has stated that the letter dated 1st April, 2017 issued in the name of Mr. Samrat Gupta is a manufactured document and the Corporate Debtor never authorised the said person to sign the said document on its behalf. Moreover, the amount of sum purportedly admitted in the said letter is Rs. 1,71,80,689.47, whereas, in the Arbitral Proceedings, the Operational Creditor No.1 has claimed a sum of Rs. 1,51,17,694/- from the Corporate Debtor. If the said sum was admitted by the Corp....
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....of Directors and without getting consent from the other directors and without a decision from the Board. According to the Ld. Counsel for the respondent he has no authority to send reply without a Board resolution. To show that Mr. Samrat Gupta and 3rd petitioner are known friends known to the public at large produced downloaded copies of Facebook Page of Samrat Gupta and 3rd petitioner Mr. Pratyush Bajoria. (Page Nos. 8 & 9 in the supplementary affidavit filed by the respondent on 21.12.2017). It was seen downloaded on 8.11.2017. Those documents were not challenged on the side of the petitioner. Ld. Counsel also submits that Mr. Gupta has resigned from the respondent company on 23.10.17 and had joined the operational creditor. This fact was not denied by the petitioner. It is a circumstance strengthening the contention on the side of the respondent that Mr. Samrat Gupta has a close association with the 3rd petitioner. 32. Ld. Counsel for the respondent also stressed his argument on the basis of Memorandum of Understanding executed on 01.01.2014 in between the Operational Creditor and the respondent (A copy is produced along with reply and marked as Annexure C) to substantiate i....
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....nsible for any other activities necessary to carry out the business, other than those not coming under the stipulated broad distinctions as stated above. d. That Hindustan Controls & Equipment Pvt. Ltd. will arrange for any after sales services, if required. Mahendra Trading Co. will render necessary support for procurement of spares whenever required. Financial Requirement: (i) Mahendra Trading Co. will bring in the necessary working capital required for manufacturing of control panels human resource cost and general overhead for business development and sales and marketing Mahendra Trading Co. will also arrange for all banking facilities for this module of business. (ii) Hindustan Controls & Equipment Pvt. Ltd. will provide their total manufacturing infrastructure setup including Tools & Machineries and Workshop. 5. Profit/Loss Sharing: a. As a lead partner Hindustan Controls & Equipment Pvt. Ltd. will share 50% of the profit from the said module of business. b. As a second partner Mahendra Trading Co. will share 50% of the profit from the said module of business. c. Similarly, loss generated from the above module wil....
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....tioner through the 3rd respondent. The unholy nexus between Mr. Samrat Gupta and the 3rd petitioner is probable to believe in the above said circumstance. In the above said peculiar circumstances we find failure on the side of the respondent in not sending reply is not fatal. This point is answered accordingly. Point No. 2 34. This is a case in which the petitioner succeeded in satisfying that all the requirements to be satisfied by it as provided under section 9(5) (a to e) of I & B, Code are satisfied. However respondent being raised various contentions regarding existence of disputes let us see whether the contentions on the side of the respondent is genuine or probable to believe even in the absence of notice of dispute issued to the petitioner. 35. The respondent contends that an arbitration proceedings being pending on the date of issuance of demand notice this application is not maintainable and that part of the claim is barred by limitation. So also it contends that the amount claimed is not due to the petitioner and since quality of goods supplied were below general standard of the respondent, it is entitled to claim damages from the operational creditor and since....
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....arding existence of dispute. The petitioner mainly relied upon E-mails send by Mr. Samrat Gupta admitting the claim for and behalf of the respondent. To strengthen the said contention Ld. Counsel for the petitioner mainly relied on E-mail copies of letters and statement of account Annexure E, and G. Annexure E is an E-mail with copy of ledger account signed and sent by Mr. Samrat Gupta to the Operational Creditor, as if respondent is confirming the outstanding amount allegedly due to the Operational Creditor. It was sent by him not in reply to any demand from the Operational Creditor. According to the respondent Mr. Samrat Gupta unanimously had taken a decision to prepare it and send to the petitioner without the decision of board of directors on 30-8-2017. Annexure-G dated 01.04.2017 is similar E-mail allegedly issued by him without having any authority to do it. 38. Whether the above referred E-mail admitting the claim of the petitioner by Mr. Samrat Gupta is the decision of the respondent or whether that decision was taken unilaterally by him without discussing with any other directors of the respondent company certainly a question arises in our conscious upon perusal of MOU,....
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....nt case is pending before Arbitration Committee constituted by The Calcutta Electric Traders' Association and hence institution of this case is not maintainable as per section 5(a) of I & B Code and hence this petition is liable to be rejected. To strengthen said contention, Ld. Counsel for the respondent referred Annexure-A at pages 21 and 23 and Annexure-B at page No. 22 and page No. 25 in the reply. Annexure A is a letter issued by The Calcutta Electric Traders Association to the respondent for clearing the dues amounting to Rs. 1,51,17,694/- of the petitioner. The respondent is warned that despite clearing of the dues they will take further course of action at their end. That letter is signed by Shank Lal Agarwal, Chairman, Arbitration Committee. It was send to the respondent on 3rd November, 2017. Annexure B is a letter in reply dated 31.08.2017, issued by the respondent to the said Chairman demanding the details of the claim of the petitioner. One another reply was send by the respondent to the Chairman on 12.09.2017 explaining the circumstances in not paying the dues as claimed by the petitioner. On the strength of the above referred documents which were not disputed Ld. Cou....