TaxTMI 
TaxTMI 
2020 (3) TMI 25
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....s. The present Petition is filed through the authorised person, Shri Yatin Babulal Mehta, as per the meeting of Board of Directors held on 26/05/2017, to initiate Corporate Insolvency Resolution process with respect to the Corporate Debtor. 3. It is submitted that the Respondent Company, Rollwell Forge Private Limited is a Company registered under the Companies Act, 1956 and is having its registered office at Plot No.l, Survey No.239/1, Shapar Veraval (Gujarat) - 360002. The Respondent company is engaged in carrying on the business of manufacturers, processors, refiners, smelters, converters, fabricators, repairers, finishers, importers, exporters, agents, buyers, sellers and dealers in all kinds and forms of forging, casting, rolling, re-rolling, welding, extruding, stretching, reducing, pressing, drawing, annealing, machining, grinding, processing, working or finishing in any manner of all kinds of metals and alloys. 4. It is stated that Petitioner has supplied the goods/Non-Alloy Steel Flanger to the Respondent company and the same has been accepted by the Respondent company, against which the petitioner has raised following invoices- Date Particulars Invoice Amou....
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....-Inspector had issued summons to the concerned persons from the Corporate Debtor to appear before him for the purpose of investigation. Accordingly, this Tribunal has instructed the Office of Superintendent of Police, Nagpur to furnish its status report, which was subsequently received by the Registry of this Tribunal on 27/05/2019. 9. In response to the present LB. Petition filed by the Petitioner, the Respondent has filed its affidavit in reply/objections through its Director, Mr.Mehul Kanungo, who is authorised to represent the Corporate Debtor. 9.1 It is submitted that the application suffers from suppressio veri and suggestio falsi, as the applicant has suppressed many material facts and stated many false things to mislead the Hon'ble Tribunal. 9.2 It is submitted that an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, must be an operational debt and according to Section 5(21) of the Insolvency and Bankruptcy Code, 2016, debt claimed by the Applicant is not legally enforceable debt. It is submitted that the alleged default occurred on 02.11.2011 & 10.11.2011 and hence, it is a time barred debt. Further, the demand notice is only sent on 08....
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....espondent is colluded with Mr.Yatin Babulal Mehta and issued a backdated cheque to take the company forcefully into insolvency. 9.6 It is further stated that as per ledger account of Respondent, the Respondent took a loan of Rs. 35,00,000.00 on 04.12.2015, from one Sunring Trade Pvt. Ltd., and on the same date Rs. 35,00,000.00 was transferred to Mr.Babulal Mehta via cheque No.2850 and cheque book of 50 cheques starting from 2801 to 2850 was in possession of Mr.Babulal Mehta and it shows that Mr.Babulal Mehta misused the cheque of the Respondent to swindle funds from the Respondent to his account with collusion with Mr.Yatin Babulal Mehta. 9.7 It is stated that the Mr.Yatin Babulal Mehta is not authorised person on behalf of the Applicant to file the present petition to initiate insolvency proceedings before this Hon'ble Tribunal under the Insolvency and Bankruptcy Code, 2016. It is also stated that the Applicant has not come with clean hands before this Hon'ble Tribunal in bringing out the necessary facts, as main objective to file Insolvency Application under the Insolvency Code is the revival of company and not to recover the debt. Hence, it is stated that the prese....
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....s a pre-emptive action, the police complaint was lodged by the Operational Creditor and the report submitted by the Police Officials confirms that no FIR was lodged on the said complaint. It is submitted that moreover, the Corporate Debtor cannot claim immunity from the criminal action, if any wrong done, merely because proceedings under the Code are pending. 11. The Respondent has filed its written submissions, wherein the Respondent has submitted as under: - 11.1 The Corporate Debtor is a going concern and the Applicant is unnecessarily dragging the Respondent under the IB Code without having a legitimate claim against the Respondent. 11.2 It is further submitted that the Applicant has failed to fall under the ambit of Limitation Act and the petition depicts that the transactions belong to the year 2011 and thereby IB Code, strictly prohibits and avoid applications filed after the three years from the date of default has been expired, hence the claim of the Applicant is time barred. 11.3 It is submitted that the ex-director of the Respondent company has colluded with Mr.Yatin Mehta and the said cheque No.2773, which is produced in the said petition is misused by him a....
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...., dtd:15.09.2015, is of the cheque book series which has been issued in 2016, but the said cheque has been issued on 15.09.2015, which indicates that the contentions of the Corporate Debtor as mentioned in their affidavit in reply at page No.8 is apparently true. 12.6 The Operational Creditor has submitted a copy of the balance sheet for the year 2013 and 2015, without indicating exactly that their name is found in the balance sheet as sundry creditor. However, on perusal, it is found that in the balance sheet of the year 2012-2013 (page No. 11), Rs. 20,83,195.00 is shown as the sundry creditor payable to the Operational Creditor. 12.7 On further perusal of the subsequent year of balance sheet submitted by the Operational Creditor as of 31.03.2015, it does not show any outstanding payable to the present Operational Creditor. It is rather showing that some amount is payable to the other companies namely Munis Forge Ltd. and Swastik Lyyod Engineer's Pvt. Ltd., as mentioned by the Corporate Debtor in their submissions. It is further observed that the limitation available for filing this IBC Petition on the basis of balance sheet as claimed by the Operational Creditor also ex....