TaxTMI 
TaxTMI 
2018 (11) TMI 1641
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....o all the acts necessary for the progress of the case. The Resolution of the Board of Directors of the petitioner-operational creditor is at Page 981 of the paper book. The application has been filed in Form 5 as prescribed in Rule 6(1) of Insolvency & Bankruptcy (Application to Adjudicating Authority), Rules 2016 (for brevity the 'Rules'). The contents of the application are supported by the affidavit sworn in by Mr. Sanjeev Mehra one of the authorized person. 2. The respondent-corporate debtor M/s A.P. Enterprises was incorporated on 13.01.1993 with authorized capital of Rs. 3,50,00,000/- (Rupees Three Crores and Fifty Lakhs Only) and paid up capital of Rs. 3,48,55,000/- (Rupees Three Crores Forty Eight Lakhs and Fifty Five Thousand Only). It has its registered office at Chandigarh and therefore, the matter falls within the territorial jurisdiction of this Tribunal. Annexure II/M is the Master Data of the corporate debtor. 3. The facts of the case, briefly stated, are that the petitioner-operational creditor is the manufacturer and supplier of high quality kraft paper. The goods were supplied to the respondent-corporate debtor from time to time. On the basis of various purchase....
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....e deposit of Rs. 8 lacs on 09.02.2018 is Annexure II/E and for Rs. 5 lacs on 23.02.2018 is Annexure II/F. There is thus, a total amount of Rs. 4,48,85,364/- still outstanding as on 23.03.2018. 6. The petitioner has attached Annexure II/G (Page 808), the list of nine cheques of the total amount of Rs. 60 lacs provided on 09.02.2018. By an e-mail dated 27.02.2018 Annexure II(I), the petitioner followed up with the respondent regarding the outstanding payment and requested the respondent-corporate debtor to replace the few cheques amounting to Rs. 60 lacs which were either dishonoured or became invalid because of the expiry of validity period. Out of the cheques drawn on State Bank of India issued by the respondent-corporate debtor for a total amount of Rs. 60 lacs, the cheques worth Rs. 50 lacs were dishonoured. 7. By e-mail dated 28.02.2018 Annexure II/J, the petitioner informed the respondent that it would be depositing certain cheques with the bank for encashment and requested the respondent to arrange sufficient funds. The chart Annexure II/H contains the details of the 12 cheques provided by the respondent-corporate debtor as on 12.03.2018 to replace the dishonoured cheques. T....
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....digarh), (iv) Charan Kamal Card Board Paper Mills Pvt. Ltd., Amritsar (Charan Kamal) and (v) Kronos Packaging Pvt. Ltd., Solan (Kronos) (page 22). The ledger account attached with reply to demand notice refers to the purchases made in respect of A.P. Ludhiana, A.P. Baddi and A.P. Chandigarh but the purchases made in the names of Kronos and Charan Kamal are not reflected. In fact, the payments were made by the respondent-corporate debtor towards the goods supplied not only to the three A.P. Enterprises entities but also in the names of other two entities M/s Kronos Packaging and Charan Kamal Card Board Paper Mills Pvt. Ltd. The chart providing details of money paid by the respondent-corporate debtor for all the five entities is at Annexure II/P. The petitioner has also responded to the entries in the bank statements annexed to the reply and those entries do not reveal which relevant entries pertains to any particular transaction nor it has provided any calculation chart to substantiate the defence that all the payments made for the purchases pertains only to the purchases made in the name of three A.P. Enterprises entities. 11. The petitioner has not proposed any registered Resolut....
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....ccordingly, the amount of the invoices which the respondent-corporate debtor is liable to pay are worth Rs. 5,60,83,015/- (Page 3 of reply) for which the respondent is not denying the liability. The amount of the invoices for M/s Charan Kamal Card Board Paper Mills Pvt. Ltd., to the tune of Rs. 1,27,25,661/- (Page 3) has to be paid by the aforesaid concern. Copy of the chart showing total invoices amount of the petitioner company and M/s Charan Kamal Card Board Paper Mills Pvt. Ltd., is at Annexure R-4. The copy of the bank statement of the respondent-corporate debtor has also been attached at Annexure R-5 (Colly) showing the regular payments being made to the petitioner-operational creditor. As per the certificate issued by the Chartered Accountant of the respondent, it has made total payment of Rs. 6,40,56,351/- (Page 4) whereas amount of liability is less than that. The petitioner is said to have extorted the respondent to receive the excess amount to the tune of Rs. 79,73,336/- (Page 5 of the reply) from the respondent-corporate debtor. 14. On similar grounds the claim made by the petitioner in respect of the goods supplied in the name of Kronos Packaging Pvt. Ltd., as the dis....
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....er book. There is nothing on record to suggest that the respondent-corporate debtor denied the liability for making payments relating to M/s Charan Kamal Card Board Paper Mills Pvt. Ltd./Kronos Packaging Pvt. Ltd. The cheques dated 12.03.2018 for a total amount of Rs. 50 lacs were issued in lieu of the cheques of Rs. 60 lacs which had bounced and therefore, these cannot be termed as security cheques. The liability to pay by the respondent-corporate debtor in respect of M/s Charan Kamal Card Board Paper Mills Pvt. Ltd. and Kronos Packaging Pvt. Ltd., also stands admitted in the e-mails dated 01.01.2018 and 09.02.2018. The payment of the invoices in respect of M/s Charan Kamal Card Board Paper Mills Pvt. Ltd. and Kronos Packaging Pvt. Ltd., has always been made by the respondent-corporate debtor. Even the C-Forms included all these invoices except for the last quarter of financial year 2017-18. The corporate debtor had undertaken to provide the C-Forms towards the supplies even in relation to invoices in the name of M/s Charan Kamal Card Board Paper Mills Pvt. Ltd. and Kronos vide undertaking dated 09.02.2018 and pursuant to the undertaking furnished in C-Forms relating to these enti....
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....nee and it has been invoiced as purchase through/buyer M/s Charan Kamal Card Board Paper Mills Pvt. Ltd. 23. The learned counsel for the petitioner vehemently contended that this was the manner in which the respondent has instructed the petitioner to invoice the supply of the goods. Reference is made to the e-mail dated 15.06.2017 (Page 761) from the respondent seeking the supply of the goods covered under this invoice, in which it is mentioned that the goods are to be dispatched in the name of M/s Charan Kamal Card Board Paper Mills Pvt. Ltd., for which the sale order accordingly is at Page 763 of the paper book. The petitioner also preferred packing slip with the name of the consignee as the respondent-corporate debtor through M/s Charan Kamal Card Board Paper Mills Pvt. Ltd., as at Page 765 of the paper book. 24. A similar reference is made to the purchase order dated 22.06.2017 (Page 767) with relevant invoice (Page 770) and the packing slip as at page 771 with the name of consignee as A.P. Enterprises through M/s Charan Kamal Card Board Paper Mills Pvt. Ltd. 25. We are unable to agree with the contention of the respondent because the order for supply of the goods was placed....
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.... 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." 28. The other important aspect is that the respondent has tried to adjust in its record now relied upon, the payments made for Charan Kamal and Kronos as liabilities which the petitioner has to pay to them and making a counter claim. The copies of the bank statement has also been filed but respondent was unable to refer to the particular entry in the bank statement, which could relate to the payments specifically to the invoices in which the goods were to be delivered through Charan Kamal or Kronos. 29. The respondent could support its contention that the payments in respect of the invoices in the name of Charan Kamal or Kronos were ever made from the account of those entities. The best evide....
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....etitioner is complete in all respects and in the absence of the existence of any dispute, the ingredients of Sub-section 5(i) of Section 9 of the Code are established. The petition, therefore, is admitted. 32. In view of the above the instant petition is admitted and we declare the Moratorium in terms of sub-section (1) of Section 14 of the code as under:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets 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; (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. 33. It is further directed that the supply of essentia....
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.... as an Interim Resolution Professional; (ii) The term of appointment of Mr. Somnath Gupta, shall be in accordance with the provisions of Section 16(5) of the Code; (iii) In terms of Section 17 of 'the Code', from the date of this appointment, the powers of the Board of Directors shall stand suspended and the management of the affairs shall vest with the Interim Resolution Professional and the officers and the managers of the 'Corporate Debtor' shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the 'Code', including taking control and custody of the assets over which the 'Corporate Debtor' has ownership rights recorded in the balance sheet of the 'Corporate Debtor' etc. as provided in Section 18 (1) (f) of the 'Code'. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the 'Corporate Debtor'; (iv) The Interim Resolution Professional shall strictly act in accordance with the 'Code', all the ....