TaxTMI 
TaxTMI 
2019 (5) TMI 1881
X X X X Extracts X X X X
X X X X Extracts X X X X
...., 2016 [hereinafter referred to as "the Code"]. 2. That, the applicant/operational creditor M/s. White 'N' White Minerals Private Limited, having identification number U14101RJ1995PTC011231 and having its registered office at Jodhpur Tower, Paota, Jodhpur 342 006, Rajasthan is engaged in the business of supply of Lime Powder. 3. That, M/s. Hilltop Concrete Private Limited is a company incorporated under the Companies Act, 1956 on 15th May, 2012 and having its registered office at 2009, J.J. A/c. Market, Ring Road, Surat, Gujarat, having identification No. U26950GJ2012PTC070354. That, authorised share capital of the corporate debtor is Rs. 7,00,00,000/- and paid up share capital is Rs. 4,99,30,000/-. 4. The applicant has sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he petitioner to resolve the issue and to reconcile the accounts (iii) the petitioner upon considering the present law, took the devise of the same and shockingly issued the statutory notice and sought to harass and coerce the respondent and as an arm twisting process filed the present application claiming to be an operational creditor u/s. 9 of the IB Code, 2016". 6. It is submitted by the applicant that the corporate debtor though alleged that the goods were sent without purchase orders they were never ever returned by the corporate debtor to the applicant company at any occasion and the respondent has utilised the same. That, there are/were no communication/evidence on record to establish goods supplied by the corporate....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... court does not need to be satisfied that the defence is likely to succeed. The court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application." 8. The applicant has submitted copy of the following documents in support of his claim:- Sr. No. Particulars Page Nos. 01 Letter of authorisation in terms of delegation of powers approved by Board of the applicant operational creditor 11 02 All invoices and debit notes issued till date along with copies of relevant "C" forms 12-74 03 Ledger statement....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ior quality. 12. I have gone through the facts of the case and heard submissions made by the parties and perused the relevant provisions and the records. At this juncture, it is pertinent to refer to sub-section 21 of Section 5 of Insolvency & Bankruptcy Code, 2016 which reads as under:- "Operational debt" means a claim in respect of the provision of goods or service including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 13. To decide the issue, it is desirable to refer to the decision of Hon'ble NCLAT in the matter of Binani Industries Limited vs. Bank of Baroda & Anr. in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on'ble Supremre Court observed that the corporate debtor consists of several employees and workmen whose daily bread is dependent on the outcome of the CIRP. If there is a resolution applicant who can continue to run the corporate debtor as a going concern, every effort must be made to try and see that this is made possible. 15. At this stage it is also desirable to refer to affidavit in reply filed by the respondent inter alia stating that without entering into any conflict and without entering into any confrontation, immediately after earlier discussion between the parties, the respondent had tendered cheques aggregating to Rs. 18,73,135/- being entire principal amount and also confirmed that the same shall be cleared upon depositi....