TaxTMI 
TaxTMI 
2020 (10) TMI 485
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....6, R/w Rule 6 of Insolvency/& Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, seeking admission of the Petition, initiation of Corporate Insolvency Resolution Process, granting moratorium and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon. AVERMENTS 2. The averments made in the Petition are as follows: 2.1 It is submitted, the Petitioner has supplied and delivered Grip TMT bars (Steel) upon receipt of oral Purchase Order from the Respondent and subsequently the Petitioner raised invoices. It is further averred that as per the standard terms of payment, the Petitioner grants only 30 days credit for the supplies made. However, taking into consideration the longstanding relations with the Corporate Debtor, the Operational Creditor granted 90 days credit for payment of invoices. 2.2. It is averred the Grip TMT bars (Steel) were delivered by the Operational Creditor as per specifications to the Corporate Debtor and no dispute was raised at the time of the delivery. It is the case of Operational Creditor that the corporate debtor failed to make payment of the outstanding amount despite several reminders. The c....
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....sh petition as and when cause of action arises. 2.7 When Respondent Company failed to service the debt due to the Petitioner, the Petitioner again issued fresh demand Notice in Form 3 dated 28.11.2018 demanding payment of unpaid operational debt which was served on the Corporate Debtor. The same is marked as Annexure - D (pages 54-57). The Respondent sent a reply notice dated 08.12.2018 denying the liabilities, which is Annexed as Annexure E(vide pages 59-60). However, after receipt of the notice also when the Respondent did not make the payments, the petitioner filed a Petition under Sec. 9 of Code on 12.02.2019. 2.8 It is averred, notwithstanding two years have lapsed, the Respondents failed to construct the flats and deliver it to Petitioner as promised. Therefore, the amount to a tune of Rs. 1,46,73,925/- continue to be due and payable by the Respondent to the Petitioner. 2.9 It is also the case of Petitioner that it is keen to cancel the registered sale deeds pertaining to the four flats and further willing to withdraw Civil Suit bearing OS No. 111/2017 pending on the file of Hon'ble XXV ACJ, provided Respondent is ready to service the debt amounting to Rs. 1,00,7....
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....s. 1568, 1578 & 1581 along with another invoice bearing No. 1566 against Purchase Order No. JP/JES/PO/2934 dated 09.07.2013 amounting to Rs. 15,96,186/- was paid as advance through cheque No. 451482 dated 22.07.2013 to the Petitioner. This amount includes invoice No. 1566 also. It is further submitted by Respondent that Petitioner refunded Rs. 16,080/- towards short supply of steel to Respondent on 21.08.2013 which is reflected in the Bank statement maintained in ING Vysya Bank. 3.4 The next three invoices viz. invoice bearing No 1941, 1943 & 1957 were raised against Purchase Order No. JP/JES/PO/3702 dated 08.08.2013 was originally for Rs. 30,21,040/-. As the Petitioner supplied only 50% of the order, placed, the said three invoices were revised matching the value of the goods supplied, which was to the tune of Rs. 15,33,060/. Further, the Respondent deducted Rs. 22,541/- towards short supply of steel and made payment of Rs. 15,10,519/- in two instalments vide cheques dated 22.08.2013. 3.5 It is the case of Respondent that the amounts due against the next four (4) invoices viz. invoice Nos. 1962, 1965, 1972 and 1973 against the PO No. JP/JES/PO/2951 dated 08.08.2013 (along wi....
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....e said payment is annexed and marked as Annexure R-13 in the counter. 3.8 The Respondent relied on clauses 6 & 7 of MoU executed between the parties which recites that all claims between the parties were fully and finally settled and that the four flats transferred under the settlement were shown at Rs. 54,72,000/- which is the value mentioned in the sale deeds as per the Government Records as against the negotiated and settled value of Rs. 1,03,00,000/- only with an intention to facilitate the Petitioner to pay lower stamp duty for registration. Likewise, Clause 8 of MoU defines that the Petitioner in order to close its sales entries in its Books of Account required the Respondent to make payment of the difference amount between the settled amount and the total of the values of the four registered flats in favour of Petitioner. Therefore, the Respondent Company reiterates that it does not owe any money to the Petitioner Company as the total outstanding amount due and payable by the Respondent Company to the Petitioner Company was fully and finally settled between the parties by registering four (4) commercial flats in favour of Petitioner. There is explicit mention in the MoU t....
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....5 (SC) and few other Judgements mentioned in the Rejoinder and states that the dispute projected by the Respondent is illusory and moonshine defence. Therefore, the petition is liable to be admitted. 5. DISCUSSION/FINDINGS: - 5.1 We have heard the counsel for Operational Creditor and Counsel for Corporate Debtor. The Learned Counsel for Operational Creditor would contend that the Operational Creditor supplied TMT Bars to the Corporate Debtor and Operational Creditor raised invoices on the Corporate Debtor for payment. The amount covered under the invoices to be paid within 30 days. However, the Corporate Debtor was given 90 days' time for payment. The Learned Counsel for Operational Creditor would contend that the invoices raised from time to time have been filed which is shown as Annexure -B (colly.) at page Nos. 17-30 of the paper booklet. The Learned Counsel contended that the amount is overdue in respect of the invoices filed. The amount due under the invoices is Rs. 1,00,73,925/- and the interest is Rs. 46,04,436/- which is claimed at 24% per annum from 01.01.2017 to 30.11.2018. Thus, the Corporate Debtor committed default of operational debt of Rs. 1,46,78,361/- whi....
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.... Sales 1568 2934 401662.00 2 23/07/2013 TMT Bars Sales 1578 2934 389944.00 3 23/07/2013 TMT Bars Sales 1581 2934 392607.00 4 20/08/2013 TMT Bars Sales 1941 3702 516506.00 5 20/08/2013 TMT Bars Sales 1943 3702 499924.00 6 20/08/2013 TMT Bars Sales 1957 3702 516630.00 7 21/08/2013 TMT Bars Sales 1962 2951 513870.00 8 21/08/2013 TMT Bars Sales 1965 2951 490800.00 9 22/08/2013 TMT Bars Sales 1972 2951 454683.00 10 22/08/2013 TMT Bars Sales 1973 2951 457944.00 Total 4634570.00 5.3 The contention of the Learned Counsel for Corporate Debtor is that the first 06 invoices have been paid throu....
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....Creditor filed one petition under Section 9 of IBC against Corporate Debtor bearing CP (IB) No. 124/9/HDB/2017. The said petition was permitted to be withdrawn when Corporate Debtor took specific plea that the claim was settled through understanding by executing sale deeds in respect of four flats bearing Nos. 301, 302, 303 & 304. There were a lot of correspondence between the Operational Creditor and the Corporate Debtor in respect of the said invoices and notices and reply notices were exchanged. The Counsel further contended that the Operational Creditor further filed civil suit in the Court of Hon'ble XXV Addl. Chief Judge, City Civil Court at Hyderabad bearing OS No. 111 of 2017 which is pending. Thus, the Learned Counsel contended that there is a pre-existing dispute in the form of civil suit. The invoices were raised in 2013. However, the present petition is filed in 2019 to enforce the amount covered by the invoices. The limitation is for 03 years from the date of raising invoices. However, the present petition is filed beyond 3 years. The petition deserves to be dismissed on this ground apart from prior dispute which in the form of civil suit which is pending. 5.5 T....