TaxTMI 
TaxTMI 
2021 (6) TMI 571
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....company incorporated on 24.02.1995 registered with Registrar of Companies - Delhi, under the provision of Companies Act, 2013 bearing CIN: V74899DL1995PTCCO65815 having its registered office at 10th Floor, DLF Building No. 10, Tower C, Cyber City Phase-II, Gurgaon - 122002. The applicant is a manufacturer of electrical equipment's and is worldwide brand in its own sphere and make. 3. The Corporate Debtor is a private limited company incorporated on 18.10.1994, registered with Registrar of Companies - Delhi, under the provisions of Companies Act, 1956 bearing CIN:UP74899DL1994PTC062178 having its registered office at 1809, 2nd Floor, Bhagirath Place, Delhi- 110006. The corporate debtor is involved in providing business service activities across India. 4. The applicant submits that both the parties were involved in business dealing, wherein the applicant supplied electric equipment/goods to corporate debtor in terms of various purchase orders issued from time to time. Invoices were raised against each purchase order and payments were to be made accordingly. However, no payment was received against 366 invoices raised from March 2015 to December 2016. 5. The applicant sta....
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....orporate debtor. Hence the service is a defective service. Further, objection is raised with regards the authorization of advocate to issue demand notice on behalf of applicant. It is also stated that the Demand notice is barred by limitation, as 216 invoices out of the total 366 invoices, with respect to which the debt fell due, is pertaining to the period of August 2015-May 2016. Moreover, the interest charged is exorbitant, unilateral, without any agreement between the parties. b) That the applicant deliberately failed to annex all invoices/documents along with the demand notice and the details of transaction on account of which alleged debt fell due. The affidavit filed is also not in the format as prescribed under IBC and NCLT Rules, 2016. The applicant has also failed to file the statement of account along with the application. Hence the application is incomplete and must be declared null and void. Accordingly, the application is not maintainable. c) That the applicant and corporate debtor signed a Distributor Commercial agreement and as per Para No. 23 of the said agreement the disputes, or any nature be refereed to arbitration. Hence this application is no....
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....ogies Limited" 2018 (2) SCC 674, it is clarified that the advocate can send demand notice. Hence, in the present case the notice send by advocate is not unauthorized. c) The applicant has relied upon the case of Hon'ble NCLAT in "Manjeet Kaur Sran Vs. Tricolite Electrical Industries Limited" (CA(AT) Insolvency No. 894 of 2019), wherein it has been clearly held that even if there is a legal notice or intimation regarding the dues within the period of limitation, the petition before NCLT will not be barred by limitation. In the present case the first invoice was raised on 05.03.2015 and the first notice was sent by the applicant through its advocate on 16.09.2017, which is well within the limitation period. The applicant has also relied upon the case of Hon'ble High Court in "Bhajan Singh Samra Vs. M/s. Wimpy International Ltd." 2011 (185) DLT 428, wherein it is held that liability in the balance of accounts will extend the period of limitation and constitute fresh cause of action. It is further stated by the applicant that even after limitation issued is considered, the default of corporate debtor is established as on date of filing of petition. Further the....
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.... c) The applicant has again relied upon the case of Supreme Court in Macquarie Bank Limited Vs. Shilpi Cable Ltd. [2018 (2) SCC 674], wherein it has been held that the advocate can send a demand notice without having actual authorization. d) The applicant states that the corporate debtor has created a concocted story of credit note, inferior quality of goods etc, to create a preexisting dispute. The dispute raised is of the period of 2012-13. Further also relied on email dated 14.01.2016 wherein the debt has been specifically admitted, the corporate debtor has promised to clear the debt of the applicant by paying a Rs. 16.5 Lakhs per month to the applicant in the year 2016. Further as per email dated 21.04.2016 the applicant stated that as on 31.03.2016, the total outstanding of Rs. 46.6 crore is due and pending. The corporate debtor by replying to the said email stated 'all this is good' and did not disputed the quantum of debt. As per the reply the of the corporate debtor an amount of Rs. 1,42,87,068.32/- has been specifically admitted. e) The applicant has relied upon the case of Hon'ble NCLAT in Manjeet Kaur Sran Vs. Tricolite Electrical Indu....
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....Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w Section 9 of the code and is complete. 16. Considering the documents on records and submissions made, it is observed that there exists an operational debt which is due and payable by the corporate debtor. An objection has been raised by the corporate debtor, with regards the service of the demand notice, which is not maintainable, as the demand notice was served at the registered office of the corporate debtor as per the MCA records and was returned with the remark 'refused to accept', which is considered as good service in the eyes of law as held by the Hon'ble Supreme Court time and again. Further, disputes have also been raised by the corporate debtor, but there is a clear admission of debt of more than 1 Lakh in reply filed by the corporate debtor in August 2019, at Para no. 20 which his reproduced as: - "....The respondent further submits that after adjusting all credit notes worth of Rs. 3,11,79,596.47/- towards demanded amount of Rs. 4,54,66,664/- of the applicant, the respondent /CD has a liability of Rs. 1,42,87,068.32/- towards applicant as per the b....
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....process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority." In view of the above discussion application is admitted. 17. The Applicant has not named an IRP, therefore, this bench appoints Mr. Akhil Ahuja is appointed as IRP of the corporate debtor, who is registered vide registration number IBBI/IPA-001/IP-P02072/2020-21/13213, having email id:[email protected] and mobile no. 9911331599, subject to the condition that no disciplinary proceedings are pending against such an IRP named who may act as an IRP in relation to the CIRP of the Respondent. The specific consent is required to be filed in Form 2 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rule, 2016 and disclosures as required under IBBI (insolvency Resolution Process for Corporate Persons) Regulations, 2016 are required to be complied with. 18. As a c....