AI Drafter 
TaxTMI 
TaxTMI 
2020 (1) TMI 346
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....r is a Public Limited Company, incorporated under the provisions of Companies Act, 1956 on 15.10.1985, duly registered with the Registrar of Companies, Jaipur bearing CIN: L31501RJ1985PLC003427, and its Registered Office is located at 2nd Floor, E-195(A), RIICO Industrial Area, Mansarover, Jaipur- 302020, Rajasthan. The Authorised share capital of the Corporate Debtor is Rs. 25,00,00,000 and Issued, Subscribed and Paid up share capital of the company is Rs. 4,99,63,680/-. The Corporate Debtor is listed on the Bombay Stock Exchange. 4. It is the case of the Applicant that the Corporate Debtor through its Director namely Mr. Anup Gupta and Mr. Abhishek Gupta approached the Operational Creditor for doing job-work for various goods e.g. PCB Assembly, LED Driver etc. Accordingly, meetings were arranged between the representatives of the Corporate Debtor and the Operational Creditor at the Registered Office of the Operational Creditor and terms & Conditions were settled between the parties. The Applicant has submitted that in the month of June, 2015, the Corporate Debtor started supplying the raw material/goods to the Operational Creditor at its factory at Noida, for job-works at agre....
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....ght to cheat and defraud the Operational Creditor. 8. The Applicant has submitted that the Corporate Debtor with mala fide intentions filled a criminal complaint under Section 156(3) of the Code of Criminal Procedure, 1973 before the Chief Metropolitan Magistrate (CMM), Jaipur for registering FIR against the Operational Creditor under the Sections 420 & 409 of the Indian Penal Code, 1860. Consequently, a FIR was registered against the Operational Creditor. However, the said FIR/complaint was closed by the concerned police authorities after conducting due investigation vide closure report under Section 173 of the Code of Criminal Procedure, 1973 dated 27.09.2016. 9. As per the running account maintained by the Operational Creditor in the name of the Corporate Debtor, a sum of Rs. 18,56,449/- is outstanding on account of job-work done by Operational Creditor as on 11.03.2016. The Applicant has submitted that the Operational Creditor is under a legal obligation to make payment of the principal amount of Rs. 18,56,449/-along with Rs. 4,73,394/- in lieu of the interest @ 18% on the said amount from 11.03.2016 to till 31.08.2017 totalling to Rs. 23,29,843/- 10. In Part-IV of the....
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....he Operational Creditor was called to appear before the Police Authority, Shipra Path and give the statements in pursuance to the FIR. However, the Operational Creditor till date, neither appeared nor produced any document in defence of the complaint. The Police Authority, Shipra Path Jaipur has closed the investigation only on the basis of the statement given by the Manager of the Corporate Debtor and submitted the final report. 15. The Corporate Debtor has submitted that the Operational Creditor in their Application has annexed the copy of the Debit Note dated 31.03.2016 which was issued by the Corporate Debtor vide E-mail dated 13.05.2016, wherein the concern of excess rate charged on Strip Light, illegally retained by them and the cost of the rejected flexible PCB were raised. However, in this regard the Operational Creditor has not raised any defence till date. The Corporate Debtor has further submitted that the Operational Creditor in its Application and Demand Notice, has admitted that the goods have been retained by them, but they had intentionally not disclosed the exact worth of said goods. 16. The Corporate Debtor has submitted that the Operational Creditor has pro....
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.... (SC) wherein Hon'ble Apex Court held as under: 25. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an "operational debt" as defined exceeding Rs. 1 lakh? (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. The Hon'ble Supreme Court has further held as under: 40. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5) (2) (d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information ut....
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....aised invoices at the same rate. Therefore, the issue is raised only with a view to avoid the payment of the debt. 22. In response to the allegation of holding Form-57 F, the Operational Creditor has submitted that it never denied issuance of Form-57 F. However, on the contrary, since the Corporate Debtor was avoiding to make payments, therefore, they did not send their representative to collect the Form 57 F. 23. The learned counsel for both the parties advanced detailed arguments. The point to be considered for discussion is "Whether the dispute as raised by the Corporate Debtor is genuine or can be categorised as moonshine dispute": (a) Section 5 (6) of the Insolvency and Bankruptcy Code, 2016 defines the term Dispute as under: "dispute" includes a suit or arbitration proceedings relating to- (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty; (b) As seen from the pleadings, the Corporate Debtor had earlier not disputed the invoices raised by the Operational Creditor. The essence of the dispute sought to be raised herein is the rate diffe....
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....bsp;'...... it is clear that "Claim " means a right to payment even if it is disputed. Therefore, merely the Corporate Debtor has disputed the claim by showing that there is certain counter claim, it cannot be held that there is pre-existence of dispute....' (f) In the matter of Topsgroup Services Ltd. v. BLS IT-Services (P.) Ltd. [IB -602/ND/2017, the Hon'ble NCLT, New Delhi on 26.04.2018], held as follows: "Respondent has taken the stand that there is existence of dispute with respect to the debt and demand in question. There has been no clear communication of dispute to the applicant about deficiency in services No damage/counter claim has been lodged. No arbitration and/or legal proceedings in the matter are pending. When there is absolutely no document or particulars to support the claim of existence of dispute, the mere claim of dispute that rose in the reply given belatedly after issue of notice u/s. 8 of IBC and in the pleadings in defence can be termed as motivated to evade the liability and thus, dismissed." Thus, the above observations support the finding arrived at that the belatedly raised dispute without establishing nexus and re....
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....tion to the Corporate Debtor which will be in vogue during CIRP of the Corporate Debtor. The IRP shall carry out Corporate Insolvency Resolution Process strictly as per the timelines specified and as envisaged under the Provisions of IBC, 2016 in relation to the Corporate Debtor. (iii) The said IRP shall act strictly in compliance with the provisions of IBC, 2016. With a view to defray his expenses to be incurred and fees on account, the Operational Creditor is directed to deposit a sum of Rs. 2,00,000/- (Two Lakhs only) to the account of IRP within 3 days from the date of this order. The IRP shall duly file the status report appraising this Tribunal about the progress of CIRP unfolded in relation to the Corporate Debtor. In terms of Sections 17 and 19 of IBC, 2016 all personnel of the Corporate Debtor including its promoters and Board of Directors, whose powers shall stand suspended will extend all co-operation to the IRP during his tenure as such and the management of the affairs of the Corporate Debtor shall vest with the IRP. (iv) In terms of Section 9 of IBC, 2016 a copy of this order shall be communicated to the Operational Creditor, Corporate Debtor as well....