2019 (6) TMI 832

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....ion to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. Ayurwin Pharma Private Limited ('Respondent/Corporate Debtor') on the ground that the Corporate Debtor failed to pay the outstanding amount of Rs. 3,29,415/- (Rupees Three Lakhs Twenty Nine Thousand Four Hundred and Fifteen Only). 2. Brief facts of the case, as mentioned in the Company Petition, are as follows: (1) The instant case is filed by M/s. Guru & Jana ('Petitioner/Operational Creditor') basing on the Engagement letter dated 20.09.2016 issued to M/s. Ayurwin Pharma Private Limited ('Respondent/Corporate Debtor'), which is under heading as "Strictly Private & Confid....

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.... do a substantially large exercise with prior intimation to you. We would approach you for a revision of fee."  (2) In pursuant to that Agreement, the Petitioner has issued a Tax Invoice dated 01.01.2017 claiming for total amount of Rs. 2,99,000/-. Followed by another debit Note No. 88/Dec 16 dated 25th January, 2017 claiming Rs. 30,415 towards OPE for internal Audit for the period April, 2016 to September, 2016. Subsequently, the petitioner issued legal notice 29.12.2017 to the Corporate Debtor, by inter alia stating as follows: (a) My Client to registered under the Micro, Small and Medium Enterprises Development Act, 2006 ("MSMED Act") and is possessed of Entrepreneurs Memorandum Number 290202103523. On a combined reading of the ....

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....you are liable to pay to my Client, the amount of Rs. 3,29,415 (Rupees Three Lakhs Twenty Thousand Four Hundred and Fifteen only) with compound interest under Section 16 of the MSMED Act calculated at 18.75% (eighteen point seven five per cent), within 7 (seven) days from the date of receipt of this legal notice. (d) A copy of this notice is also being forwarded to the Micro and Small Enterprises Facilitation Council (MSEFC) Bangalore, in accordance with Section 18 of the MSMED Act, for appropriate action." 3. Heard Shri Rafeeulla Shariff and Ms. Uthara Priyadharshini, learned Counsels for the Petitioner. 4. Shri Rafeeulla Shariff, learned PCS for the Petitioner submits that the instant Company Petition has been filed U/s. 9 of the I&B ....

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....priate action. Instead of prosecuting the remedy under the provisions "MSMED Act", and the instant Company Petition is filed under the provisions of the Code. 8. As per Section 8(1) of Code, an Operational creditor should deliver demand notice of unpaid operational Creditor, a copy of an invoices demanding payment of the amount in the default to the Corporate Debtor in such form and manner as may be prescribed. The petitioner is admittedly has not issued demand notice prescribed under the Code and they have issued legal notice under the Provisions of MSMED Act. On the other hand, that the Petitioner has invoked the Provisions of the MSMED Act for his redressal as per Section 18 of MSMED Act. Therefore, the petitioner has to prosecute the M....