TaxTMI 
TaxTMI 
2017 (11) TMI 1899
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....#39;ble Bombay High Court in Company Scheme Petition No. 744 of 2015 connected with the Company Summons for direction No. 524 of 2015. 3. Crompton Greaves Consumer Electricals Ltd., is incorporated on February 25, 2015 under the Companies Act, 2013 and the company is limited by shares and CIN of the company is U31900MH2015PLC262254. The main objects of the company/operational creditor is, inter alia, to carry on the business of manufacturing, assembling, altering, exchanging, buying, selling, importing, exporting, servicing or otherwise dealing in all types of consumer electrical goods, home and electrical appliances, electronic equipment and instrument including all types of fans, water heaters, coffee makers, induction cooktops, air coolers, LED lighting luminaires, bulbs, domestic, agricultural and industrial pumps, plugs and sockets, cable reels and its accessories including chokes undertake turnkey projects, combine two or more of its products, provide after sales services, provide consultancy and other services and solutions in relation to its products, etc. 4. The brief facts of the case are as follows : (i) Corporate debtor vide its purchase order dated July ....
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....ch amounts to Rs. 34,42,005.57. (vi) The operational creditor has raised the following invoices on the corporate debtor as mentioned below : Sl. No. Purchase order No. Date Invoice No. Outstanding amount Tax -liability Total claim (Rs.) 1. KPR/3167/173/2014-15 31-12-2014 306940931 9,32,079.06 Nil 9,32,079.06 2. KPR/3167/173/2014-15 31-12-2014 306940969 6,81,968.57 Nil 6,81,968.57 3. KPR/3167/173/2014-15 31-12-2014 306940976 16,06,952.46 Nil 16,06,952.46 4. KPR/3167/173/2014-15 31-12-2014 306940977 34,721.45 Nil 34,721.45 5. KPR/3167/173/2014-15 31-12-2014 306941003 1,51,903.50 15,637.13 1,67,540.63 6. KPR/3167/173/2014-15 31-12-2014 306941004 16,994.02 1,749.38 18,743.40 Total 34,24,619.06 17,386.51 34,42,005.57 (vii) The operational creditor noticed that the corporate debtor had started committing defaults in payment of the invoices as per the agreed terms and a number of invoices have remained unpaid for considerable period of time. (viii) The operational creditor state that th....
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....notice issued on which the applicant relies is issued under section 433 of the Companies Act, 1956 and as such this petition is defective. (b) The applicant has not attached any certificate from a financial institution confirming that there is no payment of an unpaid operational debt as is mandatory as specified by section 9(c) of the Insolvency and Bankruptcy Code, 2016. (c) The applicant had in fact issued a defective notice under section 8 of the Insolvency and Bankruptcy Code, 2016 dated April 7, 2017 which was received and replied to by the corporate debtor vide reply notice dated May 25, 2017 and same is suppressed wherein the corporate debtor is deprived to agitate their defence. The reply to the demand notice dated April 7, 2017 may be prays to the hon'ble Tribunal pleased to dismiss the company petition. (d) The applicant-company failed to make out a prima facie case. The respondent is a new company and has not even started production and that the existing and probable assets would be sufficient to meet the creditor's liability. (e) The power of attorney as attached by the applicant is not in accordance with law. The applicant ha....
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.... learned counsels for the parties and carefully perused the material papers filed by them. It is seen from the material papers submitted by the operational creditor that a legal notice was sent through RPAD on July 7, 2016 by Shri V. Deshpande and Co., advocate for the operational creditor to the corporate debtor for non-payment of outstanding amount of Rs. 34,42,005.57 along with interest at the contractual rate within 21 days from the date of receipt of the legal notice, duly treating the said notice as a statutory notice under sections 433 and 434 of the Companies Act, 1956. 9. Upon perusal of the records, the notice issued by operational creditor, counter of the corporate debtor, the Adjudicating Authority made the following observations : (a) With regard to the submission of the corporate debtor that the applicant had not attached any certificate from financial institution con firming that no payment of an unpaid operational debt as per section 9(c) of the Insolvency and Bankruptcy Code, 2016, is factually incorrect, since the operational creditor has submitted a letter dated September 11, 2017 from ICICI Bank confirming that "as on September 11, 2017 no amount(s) ....
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....o unconditionally repay the unpaid operational debt (in default) in full within ten days from the receipt of this letter failing which we shall initiate a corporate insolvency resolution process in respect of (name of corporate debtor). Yours sincerely, Signature of person authorised to act on behalf of the operational creditor Name in block letters Position with or in relation to the operational creditor Address of person signing.' From bare perusal of Form 3 and Form 4, read with sub-rule (1) of rule 5 and section 8 of the I and B Code, it is clear that an operational creditor can apply himself or through a person authorised to act on behalf of operational creditor. The person who is authorised to act on behalf of operational creditor is also required to state 'his position with or in relation to the operational creditor', meaning thereby the person authorised by an operational creditor must hold position with or in relation to the operational creditor and only such person can apply. The demand notice/invoice demanding payment under the I and B Code is required to be issued in Form 3 or Form 4. Through t....