TaxTMI 
TaxTMI 
2020 (5) TMI 99
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....tion sets out about the Operational Creditor from which, it is evident that the Operational Creditor is a Registered Partnership Firm, with Registered Document No. 39 of 2015 maintained by the Registrar of Firms, Chengalpattu. Part-II of the Application gives all the particulars of the Corporate Debtor from which it is evident that the Corporate Debtor is a Private Limited Company with CIN:U63090TN2014PTC097388 which was incorporated on 17.09.2014 and that its Authorized Share capital and paid up capital is Rs. 1,20,00,000 and Rs. 68,40,000 respectively. The Registered Office of the Corporate Debtor as per the Application is stated to be situated at Plot No. 62, Anadhavalli Nagar, Soundar Complex, Bangalore High Road, Opposite to Saint Gobain, Mambakkam, Kancheepuram, Tamil Nadu - 602 105. Part-III of the Application shows that the Operational Creditor has not proposed any "Interim Resolution Professional" (IRP) and left it to the discretion of this Tribunal to appoint the IRP. 3. From Part-IV of the Application, it is seen that a sum of Rs. 32.94 lakh is due and payable by the Corporate Debtor as on 01.09.2018. The details of transactions is stated to be on account of providing M....
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....that the Corporate Debtor has acknowledged their liability to pay the Operational Creditor by their emails dated 01.06.2017, 07.08.2017 and also from a mere perusal of the Balance sheet of the Corporate Debtor as on 31.03.2019, reflects the Long - term borrowing and Trade payable that the Corporate Debtor owes to the Operational Creditor. It was further submitted that the Corporate Debtor has remitted a sum of Rs. 10 lakh on 05.01.2018 to the account of the Operational Creditor and thereafter, no payments have been made till date. 9. The Learned Counsel for the Operational Creditor submitted that Demand Notice was issued by the Operational Creditor to the Corporate Debtor on 09.09.2018 which was duly received by the Corporate Debtor on 12.09.2018 and upon receiving the said notice, the Corporate Debtor gave evasive replies and has not raised any bona fide disputes. Thus, under these circumstances, the Operational Creditor has filed the present petition for initiation of the CIRP against the Corporate Debtor. 10. The Learned Senior Counsel appearing on behalf of the Corporate Debtor at the first instance, without going into the merits of the contentions raised by the Operational C....
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....l that there was a pre-existing dispute between the Operational Creditor and the Corporate Debtor and suppressing the same, the Operational Creditor has filed the present petition. 13. It was further contended by the Learned Senior Counsel for the Corporate Debtor that the Operational Creditor has made a demand for the subject matter of invoices as early as in the year of 2016 in relation to which there is series of exchanges of emails till January 2017 pointing out the dispute existing between the Operational Creditor and the Corporate Debtor and the Operational Creditor having kept quiet till the month of August 2018 all of a sudden issued the statutory demand notice dated 09.09.2018 for which the Corporate Debtor has sent a reply on 17.09.2018 and as such there is a pre-existing dispute touching upon the existence of the debt and there is no question of any default in payment of the alleged debt and only after the exchange of email, the demand notice was issued on 09.09.2018, which was also duly replied, referring to the earlier correspondences and hence the above petition is not maintainable. 14. The Learned Senior Counsel appearing on behalf of the Corporate Debtor submitted....
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....the payable account for which no document is produced). Confirmation of balances from the respective parties are not available. Hence the same has been obtained from the management via management representation." 18. It is an undisputed fact that the Managing Partner of the Operational Creditor whom through the present petition has been filed is holding 36.84% stake of the shareholding in the Corporate Debtor. Further, the filing of C.P. No. 4 of 2016, by the Managing Partner against the Corporate Debtor, which is pending on the file of this Tribunal, is a fact borne on record and the same goes on to show that there exists a pre-existing dispute between the parties. 19. The Learned Senior Counsel for the Corporate Debtor contended that Section 188 of the Companies Act, 2013, which deals with the Related party transaction postulates that any related party transactions which are being carried out should be with the consent of the Board of Directors given by way of a Resolution and in the instant case no such resolution has been passed to that effect. For the sake of convenience, the same is extracted hereunder; 188. Related party transactions.- (1) Except with the consent of th....
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....from the company anything by way of remuneration, salary, fee, commission, perquisites, any rent-free accommodation, or otherwise; (b) the expression -arm's length transaction/I means a transaction between two related parties that is conducted as if they were unrelated, so that there is no conflict of interest. (2) Every contract or arrangement entered into under sub-section (1) shall be referred to in the Board's report to the shareholders along with the justification for entering into such contract or arrangement. (3) Where any contract or arrangement is entered into by a director or any other employee, without obtaining the consent of the Board or approval by a resolution in the general meeting under sub-section (1) and if it is not ratified by the Board or, as the case maybe, by the shareholders at a meeting within three months from the date on which such contract or arrangement was entered into, such contract or arrangement shall be voidable at the option of the Board and if the contract or arrangement is with a related party to any director, or is authorised by any other director, the directors concerned shall indemnify the company against any loss incurred by i....