TaxTMI 
TaxTMI 
2020 (5) TMI 323
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....orate Debtor for processing of Grey Cloth and dying work and consequently had raised invoices totalling to Rs. 26,76,211=00 (Rupees Twenty Six Lakh Seventy-Six Thousand Two Hundred Eleven only), which remained unpaid by the Respondent/Corporate Debtor and therefore the Petitioner filed a Company Petition (IB) No. 463 of 2018 against the Respondent/Corporate Debtor under section 9 of the I.B. Code. 3. This Bench, having heard the parties of the I.B. Petition passed an order dated 25-11-2019 by admitting the I.B. Petition and appointed an Insolvency Professional, Mr. Sumit Shah (the present applicant) as an Interim Resolution Professional. A moratorium was also declared in respect of the Corporate Debtor Company under section 14 of the I.B. Code. 4. It is contended that in the present I.A. No. 04 of 2020 that the Respondent/Corporate Debtor was not aware of the above stated order till 20-12-2019, when the Applicant/IRP made him aware of our order. 5. It is submitted that thereafter, the Respondent/Corporate Debtor approached to the Operational Creditor and has made payment of Rs. 32,00,000=00 (Rupees Thirty Lakhs Only) towards full and final settlement of all the claims made....
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....ribunal may, in exercise of its inherent powers under rule 11 of the NCLT Rules, 2016 allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the concerned parties and considering all relevant factors of the facts of each case." 10. By considering the above stated legal position by reading with relevant provision of section 12A, section 60(5) of the I.B. Code, 2016 and the Regulation 30A of the Insolvency Resolution Process for Corporate Persons Regulations, 2016 r.w. Rule 11 of the NCLT Rules, 2016, we are of the view that the present application moved by the I.R.P. seeking for withdrawal of the Corporate Insolvency Resolution Process ("CIRP") and the moratorium; deserves to be allowed, hence, it is allowed in terms of its prayer clause. Consequently, the CIRP initiated in respect of the Corporate Debtor Company vide our order dated 25-11-2019 is hereby recalled and moratorium declared shall cease to have effects. 11. Notwithstanding the above, it is expedient to issue necessary direction to the Petitioner-Operational Creditor and Corporate Debtor jointly or severally to bear the fee of the IRP and CIRP cost as incurred by the pr....
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....ly filed Vakalatnama on behalf the Respondent and sought time to reply (Vakalatnama copy is not available on record) posted to 04/02/2019. 5. 04/02/2019 - Court is preoccupied. Matter postponed to 03/04/2019. 6. Learned Counsel of Respondent sought time, (Vakalatnama of the Learned Counsel is not available), matter adjourned to 17/06/2019. 7. 17/06/2019 - Petitioner Counsel sought time, matter adjourned to 06/08/2019. 8. 06/08/2019 - Respondent Counsel requested for some time, matter adjourned to 27/08/2019. 9. 27/08/2019 - Learned Counsel of the Corporate Debtor seeks adjournment on the ground that arguing counsel is not available. The matter is adjourned to 12/09/2019. 10. 12/09/2019 - Petitioner's Counsels Shri Vivek Gupta and Shri Akash Gupta, who have filed Vakalatnama were present. They were asked to clarify certain points relating to supply of goods and the consignee but both counsels submitted that their arguing counsel is preoccupied in some other matter. They wanted adjournment. On the other hand, Mr. Arjun Sheth appearing for the Corporate Debtor has submitted that he wishes to retire from the prese....
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....m is typed out as supply of "MICRO D PRINT". 3. All invoices enclosed are drawn on some other organisation i.e. SUNITA CREATION for supply of goods but amount is claimed in the application for "JOB CHARGES" against another company. 4. All invoices are enclosed are printout of similar nature i.e. MICRO D PRINT LOT NO etc. Reported goods supplied for which signature of any receipt from the consignee is not available in the invoice. It is blank. 5. Counsel appearing for the Petitioner never came for argument from 26/09/2018 till 23/10/2018. More than 12 months went on adjournment. 6. No Vakalatnama is available from any counsel on behalf of the Respondent (Corporate Debtor) but on 12/09/2018 Mr. Arjun Seth Counsel retired himself as he was not having instruction from the Corporate Debtor. 7. The Registry of NCLT issued notice to the Respondent Company on 28/09/2018 after the Operational Creditor filed the petition before the Adjudicating Authority on 17/09/2018. Notice sent by the NCLT was returned unserved for in sufficient address, Reported corporate debtor is in Surat, Gujarat. 8. One affidavit dated 04/02/2019 signed by Shri Da....
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....TA CREATION cheque No. 935663 dated 15/10/2015 in favour them for Rs. 1,17,768.00 which clearly shows that SUNITA CREATION is a Proprietorship firm only not a Company. 12. The buyer of pay order of Rs. 30,40,602.00 in favour of the Operational Creditor is a person named Radheshyam Jajoo. No company has paid the amount. It is apparently a clear case of fraudulent initiation of proceedings under section 9 of IBC through this Adjudicating Authority as because. 1. The Petitioner has filed petition under section 9 of IBC to initiate CIRP against a company to whom they have not supplied any goods or services. 2. The Operational Creditor has claimed in their petition that they have not been paid for "JOB CHARGES" but all invoice/bill enclosed for supply of MICRO D PRINT with lot number of the goods etc., relating to 2015. 3. Invoice has been enclosed which has been drawn on SUNITA CREATION reportedly a Proprietorship firm. Petition cannot be filed under IBC against a Proprietorship firm. 4. The Corporate Debtor sent an affidavit to NCLT that they have not taken service or goods from petitioner and they have prayed that Adjudicating Authority....
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.... 4. Corporate Debtor has never appeared before this Tribunal. No notice has been served from the NCLT and Notice sent to the Corporate Debtor by the NCLT returned undelivered as because the address written on the envelop is an address of Kolkata whereas the Corporate Debtor mentioned in the petition is from Surat, Gujarat. 5. Corporate Debtor has sent an affidavit to NCLT and NCLT has received the same on 20/03/2019, wherein it has mentioned that they have not taken any goods and services from the petitioner. They are not liable for any payment, NCLT should dismiss the petition with cost. In spite of that petition filed by Operational Creditor has been admitted. 6. No Vakalatnama has been filed by any Lawyer to represent the Corporate Debtor although a Lawyer appeared on behalf of Corporate Debtor with an undertaking that he would file the Vakalatnama and thereafter the said Lawyer withdraw himself from the case. 7. This petition has been listed/heard between 26/09/2018 to 12/09/2019 by Division Bench, not a single day Respondent has appeared nor its authorised representative/counsel. During the hearing on 12/09/2019, the counsel of the petitioner was as....