AI Drafter 
TaxTMI 
TaxTMI 
2020 (12) TMI 420
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....t payable. 2. Brief facts of the case, as mentioned in the Petition and which are relevant to the issue under consideration, are as follows: (1) Sindhu Cargo Services Private Limited, the Operational Creditor herein, is a Private Limited Company bearing CIN: U85110KA1991 PTC012381 with its registered office at Block-3, No.34, Nellakunte, Near MVIT College, Bettahalasuru, Hunse Maranhalli, Bengaluru-562157. It is running a business of providing integrated Logistic Services and engaged in end to end logistic services for Air & Sea Freight forwarding, customs clearance, transportation and warehousing. During the course of business the Operational Creditor is handling business for various customers across the globe. WIPRO Limited, the Respondent/Corporate Debtor herein, is a Company incorporated on 29.12.1945, bearing CIN: L32102KA1945PLC020800, with its registered office situated at Doddakannelli, Sarjapur Road, Bengaluru-560035. (2) It is stated that the Corporate Debtor approached the Operational Creditor for getting Logistic services. The Operational Creditor provided Logistic Services, Customs House Agent / Clearing and Forwarding Agent Servi....
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....ch the same is due. The "brief facts" annexed along with Sec. 9 application which is not a part of Form 5 cannot be the basis for initiating CIRP. Further, the particulars of the operational debt as required under Part-IV of Form-5 are not disclosed in the "brief facts" annexed along with the application. Further, the Petition is incomplete as it does not disclose any cause of action. The Petitioner failed to disclose any details to the particulars of the alleged operational debt claimed by the Petitioner and the period from which the alleged debt fell due. (3) It is contended that the Petitioner issued email dated 10.04.2010 wherein the Petitioner admitted that except a few claims mentioned therein, no amounts are due to the Petitioner from the Respondent in respect of Pondicherry circle consignment as on 31.01.2010. Nevertheless, the Petitioner suppressed the said 'no-dues' issued by it and has claimed amounts allegedly due to it from 2009. Further, the Petitioner also suppressed that subsequent dues have also been cleared by the Respondent. The Petitioner had issued email dated 18.03.2011 claiming that as per its outstanding account statement, a sum of Rs.....
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.... is claiming amount in respect of invoices that have already been paid by the Respondent. (6) It is contended that the Custom House Agent Agreement dated 01.01.2013 executed between the parties requires the parties to resolve any dispute by way of arbitration. Clause h(2) of the agreement reads as "in case of any dispute between the parties, the matter shall be resolved by way of binding arbitration under the Indian arbitration and conciliation Act, 1996 in English at Bangalore". In light of the arbitration clause the Petitioner may invoke the same to settle dispute between the parties. (7) As is evident from the Annual Report submitted by the Respondent that it is nowhere close to situation of insolvency. The Respondent Company is publicly listed on BSE, NSE & NYSE and has a workforce of approximately 1,81,000 people across the globe. The Respondent, on a month on month basis, processes salaries/wages to its workforce on a specified date of the calendar month. (8) The amount claimed by the Petitioner is Rs. 41,52,470/- whereas the profits of the Respondent Company for the year 2019-20 was Rs. 86,807,000,000/-. The profits of the Respond....
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....n 17.09.2014 and subsequently it was paid on 24.01.2017 for the pending invoices even though that was not for the same invoices and the same adjusted to earlier pending invoices. So as it was a running Business since last payment was received 24.1.2017, suit is not barred. (2) The right to file applications u/s 7 & 9 only accrued with the commencement of the Code on 01.12.2016 and not prior to that. It has relied upon the judgment of Hon'ble Supreme Court in Innoventive Industries Limited v. ICIC/ Bank and Ann and also the Hon'ble NCLAT in Randhiraj Thakur v. M/s. Jindal Saxena Financial Services and Anr. which holds that the Code is a "self-contained Code". Therefore, it would not be correct to say that the right to sue occurs when a default occurs, as there is no "right to sue" but there is a right to apply under section 7 & 9 to initiate corporate insolvency proceedings from the commencement of the Code. (3) It is stated that Petitioner has shared all certified invoice and demand notice in Form 3 which is acknowledged by the Respondent. The Respondent in all communication informed that it wants to settle the matters, but in written objection....
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....ments and not a reply or rejoinder. Hence the same may not be taken on record. 6. Heard Shri Ganapati R. Bhat, learned PCS for the Petitioner and Shri Manmohan P.N., learned Counsel for the Respondent through Video Conference. We have carefully perused the pleadings of the parties and extant provisions of the Code and the Rules made thereunder. (1) At the very outset it is seen that the Petitioner's case is hit by delay and laches. The claim of the Petitioner has admittedly arisen during the period 2009-2014 whereas this Company Petition has been filed on 21.02.2020. From the copies of the bills filed it is seen that the first bill in respect of which a claim of debt has been made is of 16.11.2009 and the last one is dated 17.09.2014, till when the Petitioner offered services to the Respondent. In each of these bills between 2009 and 2014, the Petitioner has allowed 15 days for payment to the Respondent, and hence the amounts comprised in each of the bills became due for payment after the 15th day of the issue of the bill. The cause of action therefore arose at this point of time, in the case of each bill. The 1B Code was enacted in 2016. In enacting the Code ....
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....xistence of real dispute, the IBC provisions cannot be invoked. In another judgement rendered in Transmission Corporation of A.P. Ltd. Vs. Equipment Conductors and Cables Ltd., [(CA No.9597 of 2018) dated 23rd October, 2018, (2018) 147 CLA 112 (SC)] Hon'ble Supreme Court of India has inter alia held that existence of an undisputed debt is sine qua non of initiating CIRP. As per para 34 of the judgement, it is stated that the Adjudicating Authority, while examining an application filed under Section 9 of Code, will have to determine a) whether there is an 'operational debt' as defined exceeding Rs. 1 Lakh? b) Whether documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and c) Whether there is existence of dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before receipt of demand notice of the unpaid operational debt in relation to such dispute? If any one of aforesaid conditions is lacking, the application would have to be rejected. It is not essential that there should be "bonafide" dispute in the sense that the same is likely to succeed in ....
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....t the details of payments made by the Respondent. It is found that the details of the payment of Rs. 13,07,253.26, among others, communicated by the Respondent to the Petitioner vide letter dated 24.01.2017 as being electronically transferred, contains several invoices/amounts paid after deduction of TDS which have also been included by the Petitioner in its list of pending Invoices. Some illustrative examples are: Voucher Ids 310513, 52374, 56992, 59475, 90030, 168728, 181483, 185955, 203883, 220153, 238726, 238736, 252575, 2676309116, 2219, 90485, 90906, 109439, 144607, 150561, 223769, 233618, 28668, 28683, 28715 etc. Hence we find that the dispute raised by the Respondent is real one and hence a Petition u/s 9 of the Code is liable to be rejected. 11. Further, no case has also been made out that the Respondent is an insolvent entity that has lost its ability to run its business, generate revenue or repay its debts. This is not a case where the insolvency of the Corporate Debtor needs to be resolved by initiating CIRP, which is the objective of the Code in inserting the provisions contained in sections 7 and 9. Recourse to the Code does not entail or intend pushing viabl....