2020 (5) TMI 681

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....or, Raghuvir Textile Mall, Aai Mata Road, Dhumbhal Parvat Patia, Surat - 395010 and is engaged in the business of spinning, weaving and finishing of textiles and trading of coal and lignite cross the country. The present Petition is filed through Shri Sarnir Agarwal, the authorised Representative of the Petitioner. 3. It is submitted that the Respondent Company, Honest Derivatives Private Limited having its registered address at E-43, 2nd Floor, Sumel Business Park, Near New Cloth Market, Outside Raipur Gate, Ahmedabad - 380002 and Factory Gate No.50, Maldabadi, Tal: Jamner, Dist: Jalgaon Maharashtra was incorporated on 05.07.2007 with Identification Number: U93000GJ2007VPC051271. The Corporate Debtor is a company engaged in the business of Manufacturers, Exporters and Suppliers of a Comprehensive variety of products that comprises Dextrose Powder, Corn Products, Glucose Liquid, Glucose D Powder, Malt Dextrin Powder and Starch. The authorised capital of the company is INR.26,50,00,000,00 and the paid up capital is INR.24,14,00,000.00 4. It is submitted by the Petitioner that the Respondent/ Corporate Debtor is indebted to the Petitioner for INR.21,57,700.38 (Rupees Twenty One....

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....f goods against above mentioned invoices till date. 6. It is submitted that the Corporate Debtor is liable to make ayment of the debt amount of INR.21,57,700.38 along with interest at the rate of 30% p.a. from the date of default i.e. due date of each invoice till the date of actual payment. Therefore, the Corporate Debtor is entitled to pay interest of INR.5,84,421.38 up to 31.01.2018. 7. It is submitted that the Operational Creditor has issued a Demand Notice in Form 3 and Form 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with annexure mentioned therein on 05.02.2018 and delivered it to the registered office of Corporate Debtor through Speed Post on 09.02.2018. 8. It is submitted that the Operational Creditor has received a reply of notice from the Corporate debtor through their Lawyer IC Legal on 19.02.2018, which expresses the complete denial of the debt demanded by Operational Creditor contrary holding liable the Operational Creditor to pay an aggregating sum of INR.4,44,17,608.OO for some purported losses incurred by Corporate Debtor. 9. It is submitted that the Corporate Debtor through its reply tried to create a di....

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.... side were heard and concluded. 15. In response to the present I.B. Petition filed by the Petitioner, the Corporate Debtor/ Respondent has filed its Written submissions on 06.01.2020 as under: 15.1 It is stated that the Respondent is a Private Limited Company incorporated under the Companies Act, 1956, and is engaged in the business inter alia of manufacture of starch products and other products for the past may years and has acquired vast reputation and goodwill in the industry. It was desirous of purchasing coal for use in its boiler in the factory for the production of starch and other products. The Respondent's sister concern Shri Tradco Deesan Private Limited ("STDPL") also required coal for Industries Private Limited represented, warranted and assured to the Respondent inter alia that Rawalwasia was competent and in a position to supply the quality, quantity and specification of coal required by the Respondent and STDPL. Mr. Samir Agarwal further represented that Rawalwasia had already imported 71700 metric tons on 25.09.2016. On the basis of the past dealings with Rawalwasia, the Respondent and Rawalwasia entered into a High Seas Sale Agreement dated 24.09.2016 ("H....

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....ent bearing Civil Suit No.36 of 2018 before the Hon ble Civil Judge Senior Division Jalgoan at Jalgaon. It is also pertinent to notc that the Applicant has not denied and challenged the statement, averments and contentions of the Applicant in the above mentioned Suit. 15.8 It is stated that there was a pre-existing dispute between the parties even before the receipt of the Form-3 notice dated 03.02.2018 from the Petitioner. The respondent in order to substantiate the existence of the dispute between the parties. In view of the said correspondence that a dispute was already in existence way before the receipt of the notice under IBC which Petition is liable to be rejected. 15.9 It is stated that the existing disputes between the parties and in view of the Suit for damages pending before the Court against the Petitioner, the Petitioner cannot seek to invoke the provisions of the Bankruptcy Code for recovery any amount money, wherein admittedly the disputes between the parties existing from the very beginning such an exercise in impermissible in law. 15.10 Lastly, it is stated that the nature of industries consumption of coal. The inferior quality of goods was tested by the R....

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....of the breaches and losses suffered by the Respondent under the HSS Agreement by the Respondent beari g Civil Suit No.36 of 2018 before the Honble Civil Judge Senior Division Jalgaon at Jalgaon. Hence, it is not considered as dispute. 17.7 The other suit has been filed against the Associate Company of the Petitioner for violation of HSS agreement but it does not relate in any way to the Petitioner's claim against the Respondent. Hence, this defence is not entertained. ORDER 18. 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 this Adjudicating Authority is satisfied that, a) Existence of debt is above Rs. One Lac; b) Debt is due; c) Default has occurred on 10.11.2016; d) Petition has been filed within the limitation period as the invoices are 2016 the date of default is 10/ 11/2016 whereas the Application is filed on 30.07.2018 which is within 3 years of the default of the debt; e) Copy of the Application filed before this Tribunal has been sent to the Corporate Debtor, No....