TaxTMI 
TaxTMI 
2020 (10) TMI 692
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....erein after referred to as Respondent) was incorporated under the provisions of the Companies Act, 1956 and having its registered office at No. 318, Sri Soudha, Indiranagar, I Stage, Bengaluru - 560038 and CIN No. U45203KA1990PTC011018. Its Authorized Capital is Rs. 1,00,00,000.00 divided into 10,000 shares of Rs. 100/-each. (2) It is stated that the Petitioner is one of the leading manufacturers of various grades of cement. The Respondent approached the Petitioner and placed orders from time to time for supply of Portland cement which was to be delivered by the Petitioner at project site of the Respondent at Mulbagal. The Petitioner has delivered cement form August 2014 onwards and has been regularly raising invoices for delivery of the cement that has been regularly raising invoices for delivery of the cement that has been ordered by the Respondent. Unfortunately, the Respondent has been highly irregular and has failed and neglected to pay the value of the cement that has been delivered for the Respondent's project location at Mulbagal. The amounts outstanding and the particulars of the invoice are as follows: Inv. No. Type Inv. Date Inv. Amt 899431951....
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....k 5,00,000.00 5 349131 26.06.2015 SBI Bank 5,00,000.00 6 087709 15.09.2015 Corporation Bank 5,00,000.00 7 087710 22.09.2015 Corporation Bank 5,00,000.00 8 087711 29.09.2015 Corporation Bank 5,00,000.00 (4) It is stated that the Petitioner presented the aforesaid cheques towards part realization of the outstanding amounts to their banker IDBI Bank for encashment. All the above cheques have returned dishonoured by the Respondent banker with the reasons for dishonouring the instruments as being "FUNDS INSUFFICIENT'. The Petitioner has intimated the Respondent about the dishonour of the cheques/instruments by sending notices inter alia dated 22.09.2015, 24.09.2015, 30.09.2015 (2 Notices) and 01.10.2015 requesting the Respondents to clear the amounts mentioned in the cheques. In spite of issuing the said notices the outstanding amounts including the amounts covered under the cheques issued have not been cleared and discharging by the Respondent Company till date. (5) It is stated that the total outstanding amount due and payable from the Respondent Company as on 05.06.2015 is Rs. 39,78,250/- (Rupees Thi....
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....le by the Respondent inclusive of interest is Rs. 47,06,719/- (Rupees Forty Seven Lakhs Six Thousand Seven Hundred and Nineteen Only). The Petitioner has issued a statutory legal notice dated 13.10.2015 under the provisions of Companies Act, 1956 calling upon the Respondent to pay the outstanding amount of Rs. 47,06,719/- (Rupees Forty Seven Lakhs Six Thousand Seven Hundred and Nineteen Only) within a period of 21 days failing which, it is was made clear that the Company would be presumed to be insolvent. The Respondent has failed and neglected to pay the said amount due to the Petitioner even after the lapse of 21 days after the receipt of the legal notice which was served upon the Respondent at its registered office under Registered Post with Acknowledgement Due (RPAD). Upon the receipt of the legal notice dated 13.10.2015, the Respondent has sent a reply dated 26.10.2015 expressing their financial difficulties and has requested the Petitioner for one week time to clear the outstanding due. As requested by the Respondent, the Petitioner has waited for more than one month and has given sufficient time than what was requested by the Respondent in their reply letter dated 26.10.2015....
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....lating to section 434 of the Companies (Transfer of Pending Proceedings 2016 came into force). Accordingly the case is transferred to this Tribunal by Registry of Hon'ble High Court of Karnataka vide proceedings dated 18.11.2019. Accordingly the case is listed for admission on 27.12.2019, and ordered notice to the Respondent, when none appeared for both the Respondents, it was again listed on 20.01.2020 and 10.02.2020. On 10.02.2020 Shri. G. Venkatesh, representing the Respondent submit that no notice was served by the Petitioner. Accordingly counsel for the Petitioner undertakes to serve the copy of the Petition within the period of one week and posted the case to 24.02.2020. The Petitioner has not filed any reply or compliance so far i.e. 27.02.2020. 5. Heard Mr. Vivek B.N., learned Counsel for the Petitioner, and Mr. G. Venkatesh, learned Counsel for the Respondent. We have carefully perused the pleadings of both the Parties and extant provisions of Companies Act, 1956/2013 and the law on the issue. 6. Mr. Vivek B.N., learned Counsel for the Petitioner, has once again asked adjournment to take necessary steps to comply with provisions of Code. 7. The Respondent has ....
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....tically stands transferred to Tribunal w.e.f. 15.12.2016 by operation of law. In other words, the transfer does not necessarily become effective only from the date of the order of the High Court for such order can at most partake the character of an administrative order necessitating transfer of the record and not the Petition. Therefore, the Respondent is of the understanding that, the Petitioner ought to have taken steps to get the records of the Company Petition transferred to the Tribunal and also comply with requirement of the first proviso to Rule 5(1) of the TPP Rules, 2016 within the stipulated time i.e. 15.07.2017. The consequence of not having done is that the Petition stands abated. However, in terms of the second proviso to rules 5(1), the Petitioner shall be eligible to file fresh Application u/s 9 of the Code. g. The second proviso to section 434910(c) of the 2013 Act does allow the parties to any proceedings to make an Application for transfer of such proceedings to the Tribunal. The court may by an order transfer such proceedings to the tribunal and the proceedings so transferred shall be dealt with by the Tribunal as an application under the Code.....