TaxTMI 
TaxTMI 
2021 (2) TMI 788
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.... 6 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The Petitioner is a company incorporated on 18.02.2002 and bearing Company Identification Number U74110MH2002PTC250930 whereas the Respondent is a company incorporated on 18/06/2012 and bearing CIN U72300MH2012PTC232352 and having Nominal Share Capital of Rs. 1,61,00,000/- and Paid Up Share Capital of Rs. 1,60,94,800/-. 3. The counsel appearing on behalf of the Petitioner submitted that both the parties entered into a Business Transfer Agreement dated 04.11.2016 which was to be effective from close of 31.10.2016 for transfer of "Shade Equipment Business". The counsel for the Petitioner submitted that as per the Clause 2 of the said Agreement, the Respondent agreed to pay INR 83,85,941 as consideration. Also, as per the Clause 5 of the said Agreement, the Respondent agreed that all payments to suppliers for order placed prior to the closing date, being 31.10.2016 would be discharged by the Respondent. However, the Petitioner had to discharge the said obligation and an amount of Rs. 36,66,696 has been paid by the Respondent. 4. He stated further that as per Clause 7 of the said Agreement, t....
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....nt will appreciate that the said Agreement dated 04.11.2016 is an independent transaction and contract which has no reference and/or nexus between the so-called arrangement/agreement/transaction and/or negotiations between the Italtinto Group Holdings Corporation and Clariant International Limited. 8. The counsel for the Petitioner stated that the Respondent has failed to make the payment and it is beyond doubt that the Respondent is unable to make the payment. He stated that sufficient time has been given to the Respondent in the matter to discharge the liability/debt and can't wait any longer. 9. The counsel for the Petitioner stated that the Demand Notice dated 28.09.2018 was delivered to the Respondent by the Operational Creditor on 22.10.2018 to which the Respondent had replied vide their letter dated 29.10.2018 received by the Advocate for the Operational Creditor on 31.10.2018. Later, the Respondent also vide its letter dated 10.12.2018 raised false and frivolous allegations against the Petitioner and falsely accusing them for breach of contract. To this letter of the Respondent, the Petitioner replied vide an email dated 09.01.2019 denying all the allegations made by ....
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....f the tinting equipment business carried on by the Petitioner as a going concern on a lumpsum consideration without values being assigned to individual assets and liabilities. Also, the entire consideration under the Business Transfer Agreement i.e. an amount of Rs. 83,85,941/- has been paid by the Respondent to the Petitioner. 13. The Respondent in its reply has denied that the Petitioner has paid an amount of Rs. 36,66,696/- towards payments to suppliers and as is evident from the Business Transfer Agreement, it did not contain any quantification of the amount to be paid by the Respondent company to suppliers of the Petitioner prior to the closing date being 31.10.2016 and thus the claim of the Petitioner in as much as it relates to the payments allegedly made by the Petitioner itself to the suppliers is not only unsubstantiated but also does not flow from any provision of or schedule or annexure to the Agreement. Further, such suppliers had not raised any claim upon the Respondent company. 14. Also, the Business Transfer Agreement, its annexures or schedules (which constitute the entire contract between the parties) does not contain any quantification-whether of Rs. 17,29,....
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....ion of the Respondent to make payment of all liabilities towards the retiral benefits of the employees and the Respondent has failed to perform this liability. Therefore, the Petitioner was compelled to discharge its liability on behalf of the Respondent and therefore, payment was made by the Petitioner to these parties on behalf of the Respondent. After making these payments, the Petitioner demanded these amounts from the Respondent and the Respondent even failed to make payment of these amounts. Also, when demanded by the petitioner, the Respondent has admitted its liability and still failed to make any payment to the Petitioner. Therefore, it is crystal clear that there is debt and default on the part of the Respondent. 20. Now the question remains that whether the Petitioner comes within the definition of the term 'Operational Creditor' or not. According to Section 5(20) of the Code, the definition of 'Operational Creditor' runs as follows: "Operational Creditor means a person to whom an 'Operational Debt' is owed and includes any person to whom such debt has been legally assigned and/or transferred." The term 'Operational Debt' as defined under Section 5(21) of ....
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....e Company Petition No. (IB) -625(MB)/2019 is hereby allowed and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against Italtinto Equipment Private Limited. (b) This Bench hereby appoints Mr. Bhaskar Gopal Shetty, Insolvency Professional, Registration No: IBBI/IPA-001/IP-P-01285/2018-19/12003 having office at C-77, Shanti Shopping Centre, Mira Road East, Maharashtra-401107, as the Interim Resolution Professional to carry out the functions as mentioned under the Insolvency & Bankruptcy Code, 2016. (c) The Operational Creditor shall deposit an amount of Rs. 1 lakh towards the initial CIRP cost by way of Demand Draft drawn in favor of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. (d) That this Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; a....