TaxTMI 
TaxTMI 
2019 (4) TMI 736
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....the Companies Act with CIN: U31103KA2003PTC032058, having its registered office and works at Spl Plot No. 7, 3rd Cross, 1st Gate, Industrial Estate, Gokul Road, Hubballi - 580030 (Karnataka India) and registered as a small Company registered with DIC, Rayapur Dharwad with MSME registration No.290091100632. 2. M/s. Kirloskar Electric Company Ltd. (herein after referred as Respondent) Company is duly incorporated under the provisions of the Companies Act, 1956 with CIN:L31100KA1946PLC000415 as a Public Limited Company, limited by shares, vide certificate of Incorporation dated 26.07.1946 having its registered office at Industrial Suburb, Rajajinagar, Bengaluru - 560010. Its authorised share capital is currently Rs. 115,00,00,000/- (Rupees Hundred and Fifteen Crores only) divided into 8,50,00,000/- (Eight Crores Fifty Lakhs only) equity shares of Rs. 10/- (Ten) and 30,00,000/- (Rupees Thirty Lakhs only) preference shares of Rs. 100/- (Rupees Hundred) each. The paid up capital of the Respondent Company is Rs. 63,91,77,730/- (Rupees Sixty Three Crores Ninety One Lakhs Seventy Seven Thousand Seven Hundred and Thirty only). 3. It is stated that Respondent Company is well....
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....Letter of Credit' (LC) against their supplies from various banks. The same were discounted by Petitioner Company and the dues were thus realised. 6. It is stated that from the past two or three years, the practice of issuing LC's was discontinued, and instead the Respondent Company started issuing Post-dated Cheques (PDC). Of late, there was inordinate delay in issuing PDCs. The Cheques received by Petitioner Company were around 120 days from the date of invoice. Keeping in view the ongoing business relations, the Petitioner Company accepted the same. However, the PDCs were also not honoured on due dates. Many PDCs were bounced and the cheques were recalled, and subsequently paid at their convenience through electronic transfer. Further, it is informed that there is a considerable reduction in the sales of the Respondent Company. 7. An amount of Rs. 50,62,599.40 (Rupees Fifty Lakhs Sixty Two Thousand Five Hundred and Ninety Nine approximately) is the outstanding amount from Respondent Company as per the reconciliation statement dated 31.03.2016. The petitioner being a small Company, the resources are limited unlike the Respondent Company. Such huge blockage of fun....
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....ailed to clear the outstanding amount in question. It is asserted that the Liability in question is certain, definite, crystallized and undisputed. The Respondent Company having failed and neglected to pay the due amounts is deemed to be commercially insolvent and hence requires to be wound up in accordance with the provisions of Section 433(e) and (f) of the Companies Act, 1956. 3. The Company Petition is opposed by the Respondent Company by filing statement of objections dated 21.10.2017, by inter alia, contending as follows: 1) The Company petition is not maintainable either in law or on facts and liable to be dismissed in limine. The Petitioner has not complied with the provisions of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, on transfer the case from the Hon'ble High Court of Karnataka. On this ground alone, the petition is liable to be dismissed. 2) The Petitioner issued a notice dated 06.05.2016 by calling upon the Respondent to pay an amount of Rs. 41,26,009/-. And it was responded by its reply dated 17.06.2016 by the allegation made in the notice. The Petitioner then has filed a Company petition vide Co. P. No. 180 o....
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....nkruptcy (Application to Adjudicating Authority/Rules, 2016. The Petitioner has failed to comply with mandatory provisions of the Code, 2016, Insolvency and Bankruptcy (Application to Adjudicating Authority/Rules, 2016 as well as Companies (Transfer of Pending proceedings) Rules, 2016. Therefore, the petition is liable to be summarily rejected. 4) Without prejudice to the above contentions, it is further submitted that there is no operational debt and as such the Petitioner is not an operational creditor. The Petitioner failed to provide necessary details as per the requirement of the Code and without there being necessary document on record, the Petitioner cannot claim to be an operational creditor. As per Section 5(21) of Code, 2016, operational debt means a claim. As per Section 3(6) of Code, 2016 claims means right to payment and right to remedy. In the instant case, the Petitioner is not having right to payment as well as right to remedy. The Petitioner has no right to payment as well as remedy as the Petitioner has failed to explain breach of contract under any law. The Petitioner has also not produced documents such as invoices, statement in tabular form before Trib....
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.... the parties along with extant provisions of Code and the law on the issue. 5. Both the learned counsels have again reiterated their respective pleadings as briefly stated supra. Therefore, they are not repeated herein again. 6. The case is transferred to this Bench from Hon'ble High Court of Karnataka, as per the Gazette of India Notification dated 07.12.2016. Accordingly, the case is taken on record of this Bench and issued notice to the parties vide Ref. No. NCLT/TP No. 109/17/HC/Cop No. 259/16 dated 19th January, 2017 by inter alia directing the petitioner to comply with Companies (Transfer of pending Proceedings) Rules, 2016 and file (in duplicate), the details required for admission of petition, two days prior to scheduled date of hearing and thus stands posted to 02.02.2017. 7. Subsequently, the case was listed before this Tribunal on various dates viz., 06.03.2017, 10.04.2017, 01.06.2017, 17.07.2017, 17.08.2017, 04.09.2017, 29.09.2017, 25.10.2017, 13.11.2017, 08.12.2017, 11.01.2018, 12.02.2018, 07.03.2018, 20.03.2018, 17.04.2018, 27.04.2018, 10.05.2018, 04.07.2018, 19.07.2018, 08.08.2018, 18.09.2018, 08.10.2018, 24.10.2018, 31.10.2018, 09.11.2018, 10.12.2018, 14.12....
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....pressed their willingness to resolve the issue rather than force the Tribunal to decide it in ease of doing business, the petitioner was adamant in resolving their issue. Therefore, we have examined the merits of the case so as find out whether it is fit case to admit or not. 10. As stated supra, as per first demand notice dated 06.05.2016 issued by the petitioner to the respondent, two outstanding amounts have been mentioned as Rs. 50,62,599.40 as per reconciliation statement of accounts dated 31.03.2016, and as on 30.04.2016 it is Rs. 41,26,009.17. As per demand notice dated 23rd August, 2016, it is claimed Rs. 38,11,175 as per their own reconciliation statement. Therefore, even the outstanding amount itself is in not clear. The petitioner has filed two letters dated 08.01.2014 and 19.03.2014 (Annexure D & F, Pages 42 to 45 of CP) outstanding amount was more than Rs. 40 lakhs due from 31.10.2013. Therefore, the petitioner, in fact, is seeking recovery of alleged outstanding amounts, even without substantiating it. Moreover, the Respondent is raising dispute from the date of filing initial Company petition before the Hon'ble High Court of Karnataka, as detailed supra. The petit....