TaxTMI 
TaxTMI 
2018 (7) TMI 757
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....shan Kumar and Mr. Ajit Kumar. The instant petition has been filed by the petitioner firm through Mr. Gulshan Kumar one of the partners who has also filed his affidavit dated 11. 11. 2017 in support of the contents of the application. The petitioner firm has filed application in Form No. 5 as prescribed in Rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity, the Rules). 2. The corporate debtor- respondent is Ajay Knitwears and Fabrics Private Limited with identification No. U18101PB1999PTC022421. The date of incorporation of the corporate debtor is stated to be 01. 4. 1999. The authorised capital of the corporate debtor is Rs.2. 00 crores and paid up capital of Rs.1,59,58,600. The registered office of the corporate debtor is at 41/12, Village Bajra, Rahon Road, Ludhiana, Punjab. Therefore, the matter falls within the territorial jurisdiction of this Tribunal. 3. In Part V of the application Form 5, it is stated that the debt arose due to sale of yarn by the operational creditor to the corporate debtor in the ordinary course of business. It is stated that a petition under section 433(e) read with section 434 of the Companies ....
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....ce to directions dated 04. 12. 2017 regarding service of notice issued to the corporate debtor for 18. 12. 2017 to show cause as to why this petition be not admitted. The affidavit of compliance, inter alia, states that the notice collected from the Registry was dispatched to the respondent-corporate debtor in original along with a complete set of the application on 09. 12. 2017 and was duly delivered on 11. 12. 2017. The original postal receipt and copy of tracking report filed vide diary No. 2908 dated 13. 12. 2017 are at Annexure A. 7. The respondent-corporate debtor filed reply to the application supported by the affidavit of Shri Jangi Lal Jain, Director of the respondentcorporate debtor. It is stated that nothing is due towards the respondent to the applicant as the applicant has not made delivery of the goods to the respondent which are mentioned in the said invoices and that the respondent vide its letters dated 20. 06. 2009 and 24. 07. 2010 has already asked / requested the applicant to produce the proof of delivery of the goods mentioned in the said invoices, but upto this date neither the said letters have been replied nor the applicant has given the proof of delivery o....
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....Sheet as at March 2017, relied upon by the respondent, the dues to the petitioner are not shown but there are no notes to the account explaining the reasons for the omission of the entry which was appearing till the years prior thereto. 12. On the other hand, learned counsel for the respondent-corporate debtor contended that there is a dispute in as much as the petitioner did not make the delivery of the goods to the respondent in respect of the invoices as detailed in its letters dated 20. 06. 2009 and 24. 07. 2010. It was further contended that the petitioner has not furnished any evidence of delivery of goods. There is also challenge to the financial statement of the respondent relied upon by the petitioner having prepared in connivance with an ex-employee of the respondent only with the aim of getting wrongful gain to the petitioner and the balance sheet as on March 2017 annexed as Exh. R-3 by the respondent should be accepted. It is also submitted that the claim is barred by time. 13. Section 9 of the Code reads as under:- "(1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under subsection (1) of section 8, ....
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.... 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 subclause (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. " 14. We find that the demand notices in Form No. 3 and 4 were sent by the petitioner on 11. 08. 2017 raising invoice of the amount due for the supplies made from 11. 06. 2008 to 21. 04. 2009 for total amount of Rs.21,47,069/-. Out of this amount, payments are shown to have been received and the last payment is stated to be made on 19. 07. 2011 and on that date, still the principal payment of Rs.8,98,285/- was outstanding along with interest @ 24% from the date the payment was due. The demand notice called upon the respondent to pay the aforesaid sum of Rs.8,98,285/- within ten days of receipt of the notice. The demand notice was sent by speed post on 14. 08. 2017 and delivered on 16. 08. 2017. The postal receipt is at Annexure A-1 with which the tracking report is annexed. 15. S....
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....otice 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 not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. " 20. In the facts of the present case, the respondent's contention is that the petitioner did not make delivery of the goods to the respondent which are mentioned in the said invoices, so the question of making payment to the petitioner does not arise at all. In this regard, lett....
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....ted by any documentary proof. Moreover, the balance sheet as at March 2016 filed by the petitioner at Annexure A-11 of the application is signed by the chartered accountants as well as two directors of the corporate debtor. The respondent has not even placed on record the audited balance sheets for the years 2008-09 to 2014-15 to bring support to the contention that the entry in the Account Statement for 2015-16 was made in connivance with the petitioner. Therefore, we conclude that there is no plausible contention of the respondent which requires further investigation and that the "dispute" is a patently feeble legal argument or an assertion of fact unsupported by evidence. The dispute raised is therefore, spurious, hypothetical and illusory. 24. The respondent's contention that the claim of the petitioner is time barred is now to be examined. The respondent has not disputed the fact that the company filed the Balance Sheet as at March 2016 with the Registrar of Companies. The existence of the Trades Payable of Rs.8,98,285/- in the name of Mahavir Traders in the Balance Sheet as in March 2016 is accepted. The respondent has not raised any dispute that the Trades Payable of Rs.8,9....
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....perational creditor, is not bound to propose the name of the Resolution Professional to be appointed as Interim Resolution Professional. The petitioner, however, has filed written communication in Form 2 (Annexure A-10 of application and Annexure A-2 of diary No. 2831 dated 11. 12. 2017) from Mr. Anjum Goyal, registered Resolution Professional having allotted Registration No. IBBI/IPA-002/IP-N00251/2017- 18/10765, giving all the necessary particulars as required in the form and that he is presently not serving as IRP/RP/Liquidator in any proceedings. It is also stated by him that there are no proceedings pending against him with the Insolvency and Bankruptcy Board of India (IBBI) or ICSI. Having perused the form, we find the same to be in order. 28. In result, thereof, we find that all the compliances have been made and the application is complete and the petition deserves to be admitted. In view of the above, the instant petition is admitted declaring moratorium for prohibiting all of the following in terms of Section 14(1) of the Code: - (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment....