TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 733
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....ding Security Services all over India under the branch name of 'NISA'. The registered office of the Petitioner is situated at 19th Floor, Lotus Grandeur Veera Desai Road, Andheri(West), Mumbai. 3. The Respondent/ Corporate Debtor, namely M/s.Arora Fibres Limited was incorporated on 14.10.1993 with CIN: L17119DN1993PLC000054. The authorised share capital of the company is INR35,00,00,000.00 and the paid-up share capital is INR10,05,37,300.00. The registered office of the Corporate Debtor Company is situated at: Survey No.213, Piparia Industrial Estate, Silvassa, Dadra Nagar Haveli. 4. The Respondent/Corporate Debtor had issued a Work Order dated: 14.01.2013 for Security Personnel being Supervisors as well as Guards for the factory premises of the Corporate Debtor. It is submitted that inspite of the services provided by the Operational Creditor and having raised Invoice, which were duly received by the Corporate Debtor, the Corporate Debtor failed to make payment of the dues. The details of invoice are as under:- Date Bill No. Bill Amount Full Bill Int. 24% Total OLS 8-Oct-15 NISPL/VAP/1516/1553 122984.00 122,984.00 ....
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....FR and therefore the said proc eedings of winding up could not be maintainable. 6. Further, it is submitted that the Corporate Debtor, to avoid making payment to the Operational Creditor, initiated proceedings against it for insolvency by filing T.C.P. No.423/I&BP/CLB/MB/MAH/2017 before Hon'ble NCLT, Mumbai. However, the said Petition was dismissed as withdrawn on 26.07.2017 with liberty to file fresh petition before the appropriate Forum. 7. Operational Creditor issued notice under the Rule 5 in Form 3 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, dated 02.01.2018 for an outstanding of INR18,48,234.54Ps (Rupees Eighteen Lakhs Forty Eight Thousand Two Hundred Thirty Four and Fifty Four Paise Only). 8. Subsequently, the Corporate Debtor replied to the said notice on 11.01.2018 submitting that as per the agreement i.e. point no.11 of letter dated 14.01.2013, in the event of any theft at the factory, the same would constitute liability on the part of the Petitioner and the amount of loss so incurred would be paid by the Petitioner. Further, it was contended that there were two instances of theft in the factory on 31.01.2016/ 01.02.2016 & ....
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.... of the Insolvency and Bankruptcy Code, 2016 for the unpaid Operational Debt due of INR18,48,234.54Ps i.e principal amount including INR12,98,434.00 plus INR5,49,800.54.00 i.e. interest from Oct' 2015 to 2nd Jan' 2018. 14. The case was taken up by this Adjudicating Authority on 22.03.2018; wherein both the Learned Counsels for the parties appeared. The Respondent filed its reply on 11.04.2018, whereas the Petitioner filed its written submissions on 25.06.2018. 15. In response to the present I.B. Petition filed by the Petitioner, the Respondent has filed its counter affidavit through its Director, who is authorised to represent the Corporate Debtor. 15.1 It is submitted that the Respondent denies all and singular, the statements, allegations, submissions, contentions and averments made in the present petition. It is submitted that petition is misconceived, an abuse of the process of law and should be dismissed in limine with costs. It is further submitted that the present petition is filed with a malafide intention of pressuring the Respondent to agree to the unjust and unfair demands of the Petitioner and is an abuse of the process under the Code. 15.2 It is submitted t....
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....ereafter, the Respondent filed a company petition No.889 of 2016 u/s.433 and 434 of the Companies Act 1956 in the Hon'ble High Court of Bombay, thereafter the said petition was transferred to the NCLT, Mumbai Bench under provisions of the IBC, 2016. However, during the hearing on 26.07.2017, the Mumbai Bench observed that the correct forum for the dispute is before the Consumer Forum. Accordingly, the proceedings before NCLT, Mumbai were withdrawn by the Respondent. It is submitted that the Petitioner contends that the said case was simply withdrawn, however the correct facts are as mentioned above. 15.7 During the pendency of the company petition, the Petitioner had approached the Respondent for settlement talks and it was agreed that both sides would keep legal proceedings on hold in view of these talks. Accordingly, the Respondent had not filed any case with the Consumer Forum. However, on 02.01.2018, the Petitioner issued a statutory notice under the Code to the Respondent and the Respondent vide reply dated 11.01.2018 denied the existence of any alleged unpaid operational debt referred to by the Petitioner and stated that there exist serious bonafide disputes between the ....
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....tice. The matter was listed on 01.05.2019, wherein the Adjudicating Authority observed that - 'it is a matter of record that present IB Petition i.e. CP(IB) 119 of 2018 is already reserved for pronouncement of order. Hence, such IA cannot be entertained at this stage. However, the facts agitating in the IA can be considered at the time of final disposal of the main petition. Meanwhile, the parties are at liberty to file their written submissions, if any, within a two weeks. The Order is reserved." The Applicant (Respondent herein) filed its written submissions in respect of the said IA on 11.06.2019 and reiterated the submissions made in the reply. It is submitted that the Applicant (Respondent herein) had issued legal notice dated 28.06.2016 to the Operational Creditor for the deficiency in services and the loss occurred and subsequently, the Operational Creditor also replied to the legal notice on 07.07.2016, which was further counter replied by the Corporate Debtor vide reply dated 22.07.2016. It is submitted that the aforesaid notices and reply of the Corporate Debtor to the Operational Creditor have been very candidly suppressed by the Operational Creditor with malafide in....
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....admitted, an IRP needs to be appointed. Heard the arguments of the learned counsel appearing for the Applicant. 20. OBSERVATIONS - 20.1 The Petition under Section 9 of Insolvency and Bankruptcy Code, 2016 is filed on 07.03.2013 for the default amount of INR18,48,234.54Ps, which was due on account of non-payment for security services provided by the Petitioner to the Respondent as per the work order dtd 14.01.2013. 20.2 The above work order dtd 14.01.2013 duly signed by the Petitioner and the Respondent, consists of terms and conditions, wherein at point no. 11, it is stated that - "In case of any theft from our factory due to security lapses or inefficiency, the same will be recovered from NISA's A/c." 20.3 The work order of 14.01.2013 is effective from 20.01.2013 to 19.01.2014, but it has not been extended. 20.4 The Operational Creditor issued notice on 30.09.2016 to the Corporate Debtor under Section 434(a) of the Companies Act for winding up the Corporate Debtor due to outstanding amount not paid. 20.5 The Petitioner has issued the demand notice for INR18,48,234.54Ps to the Respondent on 02.01.2018 in Form-3 to the Corporate Debtor Company, against which the Corporate ....
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....falls within the ambit of Section 5(6) of the Code which provides as below: ""dispute" includes a suit or arbitration proceedings relating to- (a) the existence of the amount of debt; (b) the quality of goods or service; or (c) the breach of a representation or warranty;" 23. When the law laid down by the Hon'ble Supreme Court in the above case is applied to the facts of the present case, it is established that there are clear disputes relating to breach of agreement as provided u/s 5(6) of the Code. The dispute regarding the breach of the terms and conditions of the work order dtd: 14.01.2013 signed by both the parties was raised by the Corporate Debtor long back prior to the issue of demand notice by Operational Creditor. Hence this is a clear case of pre-existing dispute between the Corporate Debtor and the Petitioner. 24. IA 240 of 2019 is filed by the Applicant (Respondent herein) under Section 60(5) of the IBC, 2016 against the Respondent (Applicant Operational Creditor herein) seeking necessary directions with regard to the Petition filed under Section 9 of IBC, 2016. Having heard the arguments and documents/papers submitted, we do not find any merit in this IA. Hence,....