2022 (5) TMI 1200

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....lvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules'), by M/s. Delhi Industrial Corporation (for brevity Applicant), through its partner Mr. Sanjay Kumar, authorized by resolution dated 01.10.2021 and authority letter dated 01.10.2021, with a prayer to initiate the Corporate Insolvency Resolution Process (CIRP), against M/s. Techno Auto Components (India) Pvt. Ltd. (for brevity 'Respondent'). 2. The Applicant, the Operational Creditor, is a Partnership firm, having its address at 25 Block-B, B-II, Mohan Co-Operation Estate, New Delhi-110044. 3. The Respondent, the Corporate Debtor, namely M/s. Techno Auto Components (India) Private Limited, is a company incorporated on 19.0....

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....id outstanding invoices, raised by the applicant between 30.06.2018 to 15.10.2019, along with the Ledger at Annexure A-6 (colly.) and Annexure A-7. 8. In spite of various requests made and reminders sent by the Operational Creditor, the Corporate Debtor did not reply. On failure to pay the outstanding dues by the Corporate Debtor, the Operational Creditor sent a demand notice dated 02.10.2021, under Section 8 of the Insolvency and Bankruptcy Code, 2016, to the Corporate Debtor, through email and speed post on 01.10.2021 and 05.10.2021, respectively, asking them to make the entire payment of Rs. 3,00,39,274/- (Rupees Three Crores Thirty Nine Thousand Two Hundred Seventy Four), within 10 days from receipt of the notice, failing which the O....

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....cord of default recorded with the Information Utility. It is stated that the record of default as available with the Information Utility is required to be annexed at Part V of Form 5 which the Operational Creditor has failed to provide. 9. Without prejudice, it is submitted that the Petitioner has filed the instant petition with the sole intent of recovery and not resolution. It is submitted that proceedings before this Hon'ble Tribunal under the provisions of the Insolvency and Bankruptcy Code. 2016 are not recovery proceedings and the instant petition preferred with the sole intent of recovery entails dismissal of instant petition. 10. It is submitted that the Hon'ble Supreme Court in the matter of K. Krishan Vs.....

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....llans annexed as Annexure A-10 are disputed by the corporate debtor of FOUR counts. Firstly, some of the invoices are made-up and even otherwise the exact number of products delivered to the operational creditor do not tally. The case of the operational creditor, by its own admission, is that the orders were placed telephonically or via email. No call record, phone record, messages, SMS, WhatsApp texts have been placed on record before the Hon'ble Adjudicating Authority by the operational creditor. Secondly, the operational creditor had repeatedly and regularly raised product quality issue on all deliveries. Thirdly, it was a tacit understanding between the parties that to resolve these concerns of the operational creditor the overall p....

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.... the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act." 17. It is pertinent to note that the Operational Creditor has placed on record the demand notice along with invoices, with its Application. Once the debt is shown as due, it is for the Corporate Debtor to prove that there are no outstanding dues to be paid to the Operational Creditor. Also, no such payment has been made by the Corporate Debtor. 18. The Applicant ha....

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....sposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; iii. any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act); iv. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor. 22. That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. 23. That the provisions of sub-section ....