2019 (10) TMI 1287

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....ts registered office at 60/2177 B, Pattathil House, K. P. Vallon Road, Kadavanthara, Kochi-682 020, in the State of Kerala and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 2. The operational creditor is engaged in the business of providing consultancy services to establishments for improving their productivity by restructuring and reorganising their financial, administrative and operational systems. The corporate debtor is in the business of dealing in services of construction equipment. The corporate debtor is dealing mainly in respect of sales and service of JCB machines, equipment, spare parts and lubricants for the entire Kerala region. 3. The contents of the application are supported by affidavit of Mr. Jacob Thomas Karukaparambil, the authorised representative of the operational creditor which is attached at annexure-IV of the paper book. It is stated in the affidavit that the company incurred huge losses and they engaged the operational creditor in November, 2015 to render assistance in resolving the issues. The operational creditor had entered into four consultancy agreements with the corporate debtor. The debt arose on account of ....

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....naging director and Mr. Thomas George Thayyil as the director and borrowed a sum of Rs. 1,38,00,000 each (annexure R3 to the counter). They further submitted that Mr. George Vinci Thomas, who is the husband of Mrs. Elizabeth Thomas is the managing director of the corporate debtor and Mrs. Elizabeth Thomas and Mr. Thomas George Thayyil are the only remaining directors of the corporate debtor. For repaying the above said amount the operational creditor issued two cheque bearing No. 1845504 and 184554, both dated February 28, 2018 for an amount of Rs. 1,38,00,000 each. However, both the cheques were dishonoured vide cheque return memo dated May 28, 2018. Aggrieved by this M/s. Telsa Marketing P. Ltd. had filed two separate complaints under section 138 of the Negotiable Instruments Act dated July 20, 2018 which was registered as C. M. P. No. 10713 of 2018 and C. C. No. 3132 of 2019. 10. The corporate debtor claimed that the operational creditor communicated them to settle the complaint case filed under the Negotiable Instruments Act, but the settlement terms were not amicable for the corporate debtor. They further claim that the object of this application is not to realise the opera....

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....requested for any documentary proof for consultancy work but only sought time to pay the amount due. 15. During the hearings on October 16, 2019, the Adjudicating Authority had directed the corporate debtor to submit their audited financial statements pertaining to the financial years 2015-16, 2016-17 and 2017-18 uploaded with the Registrar of Companies. However, counsel for the corporate debtor has filed an affidavit informing us that the annual financial returns for the aforesaid financial years were not yet audited, hence not filed with the Registrar of Companies, owing to the deficiency in service by the financial consultant engaged by the respondent-company. Certificate issued by the statutory auditors is also produced. 16. The CIRP application was transferred from the National Company Law Tribunal, Chennai to this Bench and renumbered as T. I. B. A. No. 14/KOB/ 2019. We have gone through the pleadings on record and perused the sub-missions made by learned counsels. On a careful perusal of the documents it is noticed that the foremost objection of the corporate debtor regarding "maintainability" of this application citing non-receipt of demand notice under section 8 of t....

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....ge 374 of 205 Comp Cas) : "Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the 'dispute' is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the court does not need to be satisfied that the defence is likely to succeed. The court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." In this case, we have not come across any record which shows a dispute that was pre-existing apart from that of a hypothetical or illusory dispute which has been raised by the "corporate debtor". 20. Thereby, on perusal of records, it is clear that the respondent-corporate debtor has not raised any dispute relating to debt nor raised any dispute relating to quality of service of goods. They merely sought informatio....