TaxTMI 
TaxTMI 
2019 (3) TMI 980
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....ered to the Corporate Debtor despite repeated demands. 2. The averments of the Operational Creditor for the consideration of the application in brief are the following:- 3. The Corporate Debtor used to place orders for the purchase of goods from the Operational Creditor. As per the orders placed from time to time by the Corporate Debtor, the Operational Creditor duly sold, supplied and delivered to the Corporate Debtor diverse quantities and specifications of Agro Fat Li Regular at the agreed price. The goods were duly delivered to the Corporate Debtor at its unit at Hazipur and same were duly received, acknowledged and accepted by the Corporate Debtor without raising any objection or demur thereto. The transport challans proving the delivery of goods to the Corporate Debtor are produced and marked as Annexure - A. The Operational Creditor has generated invoices and forwarded to the Corporate Debtor. Bills/Invoices in respect of the goods delivered were duly received, acknowledged and accepted by the Corporate Debtor without raising any objection thereto. The Corporate Debtor, however, failed to pay the sum of Rs. 19,57,205/- being the principal amount and interest thereon @ ....
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....e application is not maintainable in law or in facts and is a mala fide and vexatious proceeding. The applicant has deliberately suppressed and concealed several material facts with intent to deceive this Hon'ble Tribunal. No sum is due or payable by the Corporate Debtor to the applicant and the alleged claims of the applicant are false, baseless and contrary to records. The application has been wrongfully and illegally filed by taking recourse to the provisions of the Insolvency and Bankruptcy Code, 2016 though the application does not lie under the Code as no sum is due or payable by the Corporate Debtor. 9. The application suffers from several inherent material and incurable defects and therefore, it is not maintainable and is liable to be dismissed in limine with exemplary costs. The provisions of Section 9(3)(c) of the Code have also not been complied with. The Corporate Debtor has not had any transactions as alleged in the application and therefore, there does not arise question of making any payment to the applicant. The application is not in form and not duly verified and affirmed and as such the same is liable to dismissed. 10. The claim of the Operational Credit....
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....the Corporate Debtor prays for dismissal of the application. 13. The Operational Creditor has filed rejoinder contending in brief is the following: 14. The Operational Creditor denied all the allegations other than the allegations admitted in the rejoinder. The authorised signatory who has filed the Application is competent to affirm the affidavit. The signatory who has filed the affidavit in support of the reply affidavit is incompetent to affirm the same on behalf of the Corporate Debtor. No Power of Attorney has been disclosed in the said affidavit. It is incorrect to say that the application is not maintainable in law or in facts or that the proceeding is vexatious or mala fide. It is also incorrect to say that the Corporate Debtor had no transaction as stated in the Application. Mr. Amit Kumar Agarwal is an authorised signatory of the Operational creditor and proving his authorisation, Board resolution is produced along with the Application. It is incorrect to say that the invoices on which the demand was made were manufactured, fabricated or concocted or wrongly brought into existence for the purpose of instituting any false or fabricated claims as alleged. On the other....
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....as been produced to substantiate the undisputed claim of the Operational Creditor. This will reflect the truth and the transactions between the Operational Creditor and the Corporate Debtor. Upon the above said contentions, the Operational Creditor has prayed for admitting the Application in terms of the averment raised in the Application. 15. Upon filing the rejoinder, a supplementary reply affidavit was permitted to be filed by the Corporate Debtor as some of the new documents were produced along with the rejoinder by Operational Creditor. The Corporate Debtor further contends that the contentions raised in the rejoinder are denied and disputed for the reason it does not contain any date and the same has purportedly been attested by the Notary Public. In addition to the said contention, the Corporate Debtor contends that the Operational Creditor filed the Application on the basis of wrong and incorrect challan and it is a circumstance to dismiss the Application outright. There is nothing in the Application to prove that Corporate Debtor placed orders in respect of goods which the Operational Creditor has allegedly supplied to the Corporate Debtor. The challan produced along wi....
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.... Creditor has not requested the Corporate Debtor to issue 'C' Form. The contention raised in the demand notice is at variance at the notice issued under Section 434 of the Companies Act, 1956 by the Operational Creditor. Upon the above said contentions, the Corporate Debtor prays for passing an order for dismissal. 16. The Operational Creditor has sought leave to file sur-rejoinder since the Corporate Debtor has raised new contentions in the supplementary reply affidavit and contrary to the contentions in the reply affidavit. Being satisfied that the Corporate Debtor has raised new contentions than that of the contentions taken in the reply affidavit already filed, the Operational Creditor was given opportunity to file sur-rejoinder. The contentions raised in the sur-rejoinder in brief is the following. 17. The Operational Creditor denied all the averments in the supplementary reply affidavit other than the averments admitted in the sur-rejoinder. The deponent who has affirmed the affidavit annexed to the supplementary affidavit has no authority to submit the affidavit for want of production of Power of Attorney. The supplementary affidavit filed by the Corporate Debt....
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....n the side of Operational Creditor and Ld Sr. Counsel Mr. Joy Saha on the side of Corporate Debtor. Perused the records and the decisions cited on the side of the Corporate Debtor. 20. Upon hearing the arguments on both sides and on consideration of the contentions raised on the side of the Operational Creditor and the Corporate Debtor, the points that arise for consideration are - (i) Whether the Operational Creditor/applicant succeeded in proving that the debt as claimed is due and payable and has not been paid by the Corporate Debtor as alleged? (ii) Whether the Corporate Debtor succeeded in proving a pre existing dispute comes under the purview of section 5(6) of the Code as alleged? (iii) Relief and costs. Point Nos (i) and (ii). 21. Both points are taken together for convenience and for avoiding repetition of facts. Agarwal Industries Private Limited/Operational Creditor is engaged in the business of manufacturing of poultry feeds. The Operational Creditor used to supply Agro Fat Li Regular to the Corporate Debtor and the said supply of goods to the Corporate Debtor was continued till December, 2016. It is an admitted fact. (Para 15 o....
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....is an admitted case of the Corporate Debtor that Amrit Feeds Limited and Amrit Hatcheries Limited belong to Amrit Group of Companies. Instances of filing many number of cases as against Amrit Group Companies inclusive of the above said two companies under the provisions of the Code have been taken judicial notice of by this Bench. In this case, the Operational Creditor has issued two demand notice u/s.8(l) of the Code. Firstly on 15.3.2017 and secondly on 01.11.2017. The first notice was replied by the Corporate Debtor by not denying the receipt of the goods referred to in the invoices referred to in the application but admitted the receipt of goods and also admitted existence of terms of understanding between the Operational Creditor and the Corporate Debtor. But on the strength of the demand notice referred to in the said demand notice issued by the Operational Creditor, it did not choose to file an application, but issued fresh demand notice specifying the invoices issued in the name of the corporate Debtor. The earlier notice was defective for the reason of issuing notice referring to the invoices of the two companies inclusive of the Company of the Corporate Debtor. To the sai....
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....tional Creditor has failed in taking back the defective goods. The above said is the gist of main contention raised by the Corporate Debtor in the above said reply dated 10.04.2017. 25. The Corporate Debtor also contends that no amount is outstanding or due to the Operational Creditor as the Operational Creditor has not supplied any goods as contended and that the Corporate Debtor is not admitting the contents or existence of the invoices. So in the reply dated 10/04/2017 to the demand notice the Corporate Debtor has no consistent contentions regarding the liability to pay the outstanding amount due as claimed by the Operational Creditor and has not denied the receipt of the goods or that the Corporate debtor used to acknowledge in the invoices or in the Transport Challan and that E-Way bill no way issued by the Operational creditor. 26. Being found that the Operational Creditor did not raised specific demand as against the Corporate Debtor in respect of the goods supplied to the Corporate Debtor/Amrit Feeds Limited at Bihar the Operational Creditor has issued one another demand notice dated 01/11/2017. To the said notice, there was no reply as mandated under Section 8(2) of ....
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....rejected with cost. 30. Application of the proposition in the above cited decisions is not at all opposed on the side of the Operational Creditor. The contention that no purchase order was issued for purchasing the goods referred to in the invoices seems to have been given up at the time of argument by admitting oral understanding in between the Operational Creditor and Corporate Debtor. Admittedly, there was an understanding in between the Corporate Debtor and the Operational Creditor for supply of goods. It is an admitted fact stated by the Corporate Debtor in the reply notice dated 10-04-2017. What is attempted to establish on the side of the Corporate Debtor by way of reply to the notice received by the Corporate Debtor mainly is that the goods supplied were defective and there was short supply of goods. There was no contention raised in the reply notice other than the reply notice dated 05-02-2018 that the Corporate Debtor was not in receipt of the goods referred to in the invoices referred to in the Application and in the demand notice. The contention that goods supplied were defective and there were short supply of goods raised by the Corporate Debtor in its reply notice ....
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....mrit Hatcheries. The invoices value referred to in that Challan comes to Rs. 7,66,605/-. This mistake was brought to the notice of the Operational Creditor only on receipt of the copy of reply affidavit filed by the Corporate Debtor. Realising the mistake the Operational Creditor has filed the challan corresponding to the delivery of goods referred to in the tax invoices marked as Exhibit "B" annexed at Page 19-20 of the Application. That challan is also under challenge. According to the Ld. Sr. Counsel for the Corporate Debtor that challan also does not prove acknowledgment from the side of the Corporate Debtor. The Annexure "A" Challan though mistakenly placed in the application, a look at the challan shows that it does not contain signature or acknowledgment in writing or affixing of seal of the Corporate Debtor. So, in the nature of business conduct between the Operational Creditor and the Corporate Debtor, I can legitimately infer that the corporate Debtor was not in the habit of acknowledging the receipt in the transport challan. The invoices value referred to in Annexure "A" on the other hand, indicates that goods worth of Rs. 7,66,605/- has been transported by the consignor....
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....it was generated at the instance of the Consignor who is none other than the Operational Creditor. This was downloaded from the Government of Andhra Pradesh Department website. The e-way bill, therefore, cannot be rejected but can be considered as a corroborative evidence to prove that the goods referred to in the invoices were transported to the addressee who is none other than the Corporate Debtor. 34. Ld. Sr. Counsel at this juncture submits that e-way bills were issued by the Commercial Tax Department to the Operational creditor and e-way bills do not help the contention on the side of the applicant for want of non-production of C-Form which would have been raised confirming the receipt of goods by the Corporate Debtor. According to the Ld. Counsel for the Operational Creditor raising C-Form is not required in respect of transportation of goods in the case in hand because both in Andhra Pradesh and in Bihar as per Value Added Tax Act, the poultry feed is exempted. The goods in question were transported from Andhra Pradesh to Bihar. Copy of Ordinance and regulation dated March 28, 2005 of Andhra Pradesh Acts and copy of The Bihar Value Added Tax Act, 2005 were produced before....
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....debtor and thereby the amount in demand is found due and payable by the corporate Debtor. The amount found due was not repaid. No pre-existing dispute as per S. 5(6) of the Code stands proved on the side of the Corporate debtor. These issues are answered accordingly. Point No.(iii) 37. The next question is whether the applicant proved compliance of the requirement to be meted out u/s. 9(5) of the Code. The applicant also succeeded in proving that the application filed is complete as per sub-section 2 of S.9 of the Code, that there is no payment of unpaid amount found liable to be paid by the Corporate Debtor, that the invoices and notice were delivered to the Corporate Debtor, that affidavit is filed in compliance of Section 9(3)(b) to the effect that there is no notice given by the Corporate Debtor relating to a dispute of the unpaid operational debt and that the bank statement copy is produced in compliance of S.9(3)(c). Since no resolution professional name was proposed, compliance of section 9(5)(i)(e) does not at all arise. The Application filed under Section 9 being proved to be complete, it is liable to be admitted. 38. Since no resolution professional name was prop....
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....s or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (v) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium period. (vi) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. (viii) Provided that where at any time during the Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or pa....