TaxTMI 
TaxTMI 
2020 (10) TMI 685
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....office at 411, Embassy Centre, Nariman Point, Mumbai - 400 021 and is in the business of dealing with scrap materials. The present Petition is filed through Shri Mehul Jayshankar Mehta, the authorised Representative of the Petitioner. 3. It is submitted that the Respondent Company, Agarwal Mittal Concast Private Limited having its registered address at A-201, Mondeal Square, NR. Prahladnagar Garden, Opposite Honest Restaurant, S.G. Highway, Ahmedabad, Gujarat - 380 015 was incorporated on 02.05.2008 with Identification Number: U27109GJ2008PTC053776. The authorised capital of the company is Rs. 12,00,00,000 and the paid up capital is Rs. 10,17,59,000.00 4. It is submitted by the Petitioner that the Respondent/Corporate Debtor is indebted to the Petitioner for Rs. 1,52,88,434.00 (Rupees One Crores Fifty Two Lakhs Eighty Eight Thousand Four Hundred Thirty Four Only) along with interest accrued thereon at the rate of 17% per annum from the respective due date of each invoice. Details of transactions on account of which the debt fell due are mentioned herein below: Sr. No. Invoice No. Date Amount 1 24 31.07.2017 24,95,3....
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....porate Debtor issued and handed over a cheque bearing No. 001071 dated 01.03.2018 for a sum of Rs. 1,52,88,434.00 drawn on Kotak Mahindra Bank, Navrangpura Branch, in favour of the Operational Creditor towards part of his liability and assured and promised that the aforesaid cheque will be honoured on presentation. 8. It is submitted that on the instructions of the Corporate Debtor, and assurance and promise, aforesaid cheque was deposited in Kotak Mahindra Bank. However, the same was dishonoured and returned as unpaid with Memo of dishonour dated 16.03.2018 with remark "Account Closed." The Operational Creditor, through its advocate issued a notice dated 27.03.2018 under Section 138 of the Negotiable Instruments Act. 9. It is submitted that the Corporate Debtor had never raised any complaint or dispute regarding quality and/or quantity of the materials supplied by the Petitioner, and yet payments against all such invoices were not made, in accordance with the agreed terms and conditions. There were outstanding dues for each of the order supplied by the Petitioner, which amounts to a total outstanding of Rs. 1,52,88,434.00 (Rupees One Crores Fifty Two Lakhs Eighty Eight Thous....
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.... is submitted that the entire liability was not fulfilled by the Respondent for the amount due and payable to the Applicant. An undisputed amount of Rs. 1,52,88,434.00 along with interest incurred thereon at the rate of 17% per annum is still due and payable by the Respondent. Therefore, the non-payment of the debt due and payable amount is default within the meaning of Section 3(12) of the IB Code. Accordingly, the Petitioner sent a demand notice dated 13.04.2018 under Rule 5 of the IBC Rules for the payment of the amount claimed in default along with the interest thereon, failing which it was intimated to the Corporate Debtor that the Petitioner shall initiate a CIRP against the Respondent. The said demand notice was dispatched at the registered address of the Respondent; however, the same was undelivered and returned back with remark left'. It is submitted that the Petitioner has duly caused the service of demand notice upon the Corporate Debtor at its registered office and hence sufficient service. It is submitted that since the Corporate Debtor has neither satisfied the claim nor compounded or secured the same to the satisfaction of the Petitioner within the statutory peri....
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....nt to the Demand Notice, is also not tenable, this defect is not a curable defect and the present application is liable to be rejected only on this ground. 18.3 It is submitted that the present petition is also liable to be rejected on the ground that there exists a pre-existing dispute in response to the Demand Notice dated 13.04.2018. The Respondent Corporate Debtor sent notice of dispute dated 24.04.2018 as per the provisions contained in Section 8(2)(a) of the IB Code and it is stated that on perusal of the notice of dispute dated 24.04.2018 it would be revealed that there are pre-existing disputes between the parties and as such, the present petition is liable to be rejected. 18.4 It is submitted that as the facts would show, the Operational Creditor illegally used a cheque bearing No. 001071 which was a blank cheque given by the Respondent Corporate Debtor way back in the year 2013 to the Operational Creditor as a security but not towards any outstanding debt. The account to which, this cheque was issued was itself closed on 31.03.2014, i.e. the Kotak Mahindra Bank Limited and the Kotak Mahindra Bank Limited issued a letter dated 31.03.2014 to the Corporate Debtor infor....
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....ion, may kindly be perused. The order of this Hon'ble Tribunal on the aforesaid application, that in the meeting of unsecured creditors of the Corporate Debtor, of the 23 unsecured creditors present at the meeting, one unsecured creditor voted against the Scheme. It is submitted that it was the Petitioner who was the only unsecured creditor who was present in the meeting that had objected to the Scheme of Amalgamation of the Corporate Debtor with three of its group companies. 19.4 It is submitted that the supporting documents mentioned hereinabove, the Petitioner places reliance upon the matter of Sudhi Sachdev v/s APPL Industries Limited. In the said order, the Hon'ble National Company Law Appellate Tribunal has held at para 6 that the pendency of a case under Section 138/144 of Negotiable Instruments Act, 1881, actually amounts to admission of debt and not an existence of dispute. Placing reliance on the said order, it is the submission of the Petitioner that the order of the Hon'ble Appellate Tribunal makes it clear that no defence of an existence of dispute can be supported when a cheque for the amounts due has been issued and was thereafter dishonoured. 19.5 ....
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....porate Debtor's liability to pay the applicant, even after issuance of the Demand Notice under the IB Code. It is submitted that in the judgment of Mobilox Innovations (P.) Limited v/s Kirusa Software P. Limited, the Hon'ble Supreme Court held that "so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the Adjudicating Authority has to reject the application." Further, it is a settled principal of law that a defence is required to be consistent, cannot contradict itself. Form the material placed on record by the Corporate Debtor, it is clear that no existence of a dispute prior to the demand notice can be made out. In fact, the material placed on record by the Petitioner not only clearly proves the existence of a debt, but also show that the defence taken by the Corporate Debtor is contrary to its own actions of (i) issuing a cheque for payment of dues, (ii) issuing signed and stamped acknowledgement of debt by way of statement of accounts and (iii) issuing notice to the Petitioner as its unsecured creditor, seeking approval of the Scheme of Amalgamation between the Corporate Debtor and three of its group companies. Hence, a combined readi....
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....RDER 21. Considering the material, papers filed by the Petitioner on record the arguments of the Counsels from the both sides and the facts mentioned in the Para No. 20, 20.1, 20.2, 20.3, 20.4, 20.5, 20.6, 20.7 & 20.8 this Adjudicating Authority is satisfied that, a) Existence of debt is above Rs. One Lac; b) Debt is due; c) Default has occurred on 16.03.2018; d) Petition had been filed within the limitation period as the invoices are 2017 whereas the Application is filed on 11.10.2018 which is within 3 years of due for payment; e) The Applicant was invited as a Creditor by the Corporate Debtor to the meeting held for Amalgamation. The Applicant had objected the Amalgamation Petition filed on CP(CAA) 1 of 2019 in CA(CAA) No. 112 of 2018. It is a proof that the Corporate Debtor has acknowledged the Applicant as its Creditor. f) Copy of the Application filed before this Tribunal has been sent to the Corporate Debtor, Notice has been duly served. The Respondent has failed to appear before this Adjudicating Authority and the Petition filed by the Petitioner under Section 9 of IB Code is found to be complete for the purpose of ini....