TaxTMI 
TaxTMI 
2022 (6) TMI 984
X X X X Extracts X X X X
X X X X Extracts X X X X
....d, supplied and delivered to Corporate Debtor diverse quantities and specifications of whole spices including turmeric, red chilli, coriander, cumin seeds (hereinafter referred to as the "said goods") at the agreed price. 3. The said goods were duly received and acknowledged by or on behalf of the Corporate Debtor without raising any objection. From time to time, the Operational Creditor has raised its invoices in respect of the said goods sold to Corporate Debtor and the same were duly received and acknowledged by the Corporate Debtor without any objection. 4. After giving due credit to the payments made from time to time by the Corporate Debtor to the Operational Creditor, a principal sum of Rs. 27,68,141/- (Rupees twenty-seven lakh sixty-eight thousand one hundred forty-one only) along with interest @ 24% is still due and payable by the Corporate Debtor. 5. In acknowledgement of the liability, the Corporate Debtor had issued diverse cheques for an aggregate sum of Rs. 24,81,330/- (Rupees twenty-four lakh eighty-one thousand three hundred and thirty only) in respect of the some of the bills. The Corporate Debtor had assured to give further cheques for Rs. 2,86,811/- (Rup....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the provisions of the Code. The signatory to the said application is not authorised to institute the present proceeding before this Adjudicating Authority. 12. Further, there is no debt which is due and payable by the Corporate Debtor to the Operational Creditor. The alleged claim of the Operational Creditor is barred by limitation. A time-barred debt cannot form the subject matter of the present proceeding. 13. There are pre-existing disputes pertaining to the transaction in question and a decision as to the alleged claim of the operational creditor would only be possible in a proceeding where evidence would be taken and cannot be decided or adjudicated summarily. The goods alleged to have been supplied under four invoices relied upon in the said application have never been received by the Corporate Debtor. 14. The Corporate Debtor in usual course of business, placed orders for spices upon Vashistha Spices Grinding Mill of No. 15, Kirtibash Mukherjee Road, Kolkata 700 067. The Corporate Debtor all along had transacted with Vashistha Spices Grinding Mill through its sole proprietor, Sri Shankar Singh. Any goods/raw materials that were required by the Corporate Debtor were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rack and reconcile that the consignment has been actually received and thereafter accepted after passing of quality tests. The Corporate Debtor denies receipt of the goods covered by the above four invoices and puts the Operational Creditor to strict proof thereof. 19. Since the transaction between the parties, in the manner already stated hereinabove, continued since long, it was a practice that the Corporate Debtor would make over cheques mostly in round figures drawn in favour of the Operational Creditor which would cover the advance payment for goods to be supplied to the Corporate Debtor through Vashistha Spices Grinding Mill. The Corporate Debtor had made over cheques worth Rs. 22,81,330/- (Rupees twenty-two lakh eighty-one thousand three hundred thirty only) in favour of the Operational Creditor drawn for the months of May and June 2018. 20. Since there was no supply of goods effected during the relevant period, the Operational Creditor was not entitled to payment covered by such cheques. The Operational Creditor, with mala fide intention and oblique motive presented such cheques in the month of August 2018 which were dishonoured. The Operational Creditor, with dishone....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Corporate Debtor has also filed a complaint before the sales tax authority reiterating the same issue and an investigation has been initiated by the sales tax authority. Rejoinder on behalf of the Operational Creditor: 25. The Corporate Debtor used to place orders upon the Operational Creditor for supply of whole spices. The Corporate Debtor used to specify as to where the spices were to be delivered. As per the delivery instructions of the Corporate Debtor the Operational Creditor used to supply and deliver the goods. The Corporate Debtor in respect of some transactions instructed the Operational Creditor to deliver the goods to Vashistha Spices Grinding Mill which was done by the Operational Creditor. 26. The Operational Creditor supplied whole spices at the instructions of the Corporate Debtor and delivered the same at the address specified by the Corporate Debtor. The Operational Creditor is not concerned with the arrangement which the Corporate Debtor had with Vashistha Spices Grinding Mill. The obligation of the Operational Creditor was to supply goods as per the specification and as per the delivery address provided by the Corporate Debtor. The goods were duly recei....
X X X X Extracts X X X X
X X X X Extracts X X X X
....accompanied by Road Challans as alleged. A dishonest stand has been taken by the Corporate Debtor to avoid making payment of the outstanding dues of the Operational Creditor. 33. The subject matters of the petition are six invoices. In addition to that a sum of Rs. 75,000/- is and payable on account of invoice dated 23 February 2018 bearing Bill No. IFP/17-18/866. The said Bill was for Rs. 4,80,900/-. The Corporate Debtor made part payment of Rs. 4,05,900/- and failed and neglected to make payment of balance amount of Rs. 75,000/-. 34. In respect of Invoice No. Bill No. IFP/17-18/867 dated 23 February 2018 for a sum of Rs. 3,71,250/-, the Corporate Debtor issued five cheques amounting to Rs. 3,71,250/-. The said cheques were dishonoured upon presentation. 35. In respect of Invoice No. IFP/17-18/868 dated 23 February 2018 for a sum of Rs. 6,98,880/-. The Corporate Debtor gave ten cheques amounting to Rs. 6,98,880/-. Out of the said ten cheques amounting to Rs. 6,98,880/-, nine cheques amounting to Rs. 6,23,880/- were dishonoured upon presentation. 36. The Cheque No. 891586 for Rs. 75,000/- was honoured. In respect of Invoice No. IBP/18-19/016 dated 04 April 2018 amountin....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Corporate Debtor in respect of the said four invoices. The Corporate Debtor duly received the invoices and did not at any point of time complained that the goods were not received under such invoices. The goods were delivered and accepted that is why the invoices were accepted by the Corporate Debtor. 42. It is denied and disputed that Shankar Singh is the proprietor of the Operational Creditor as alleged or at all. The proprietor of the Operational Creditor is Binod Kumar Choudhury. In the letter dated 04 August 2018 the Corporate Debtor has admitted issuance of cheques and the receipt of goods. The corporate debtor has alleged in the said letter dated 04 August 2018 that powdered spices were spurious. The said allegation is false and untrue and incorrect as the operational creditor has supplied whole spices and not powdered spices. The allegations have been raised as an afterthought and letters dated 04 August 2018 and 20 August 2018 has been raised after cheques were dishonoured. 43. The allegations which the Corporate Debtor has raised are that the cheques which were issued by them were not presented on the date mentioned in the cheque when the Corporate Debtor had suffi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....roceedings are still pending. Analysis and findings: 47. It is clear that even though there was no written agreement between the Operation Creditor and the Corporate Debtor, a business relation did exist between them and that the CD had in fact supplied the whole spices to the CD for which ad hoc payments were also made on numerous occasions except against the invoices in question. The Corporate Debtor has claimed that there are pre-existing disputes regarding the quality of goods supplied to the Corporate Debtor. 48. However, the letters dated 27 June 2018 and 04 August 2018 regarding the same as sent by the Corporate Debtor are wrongfully addressed towards one Mr. Shankar Singh, whom the Corporate Debtor mistakenly addresses as the proprietor of Isha Food Products, Even though the relationship between Isha foods and Vashishta grinding works is not quite elaborated in the pleadings, it appears that no case has been made to prove that Shankar Singh is running all these companies, namely, Abhilasha Exports, Isha foods and Vashishtha Grinding, whereas the Operational Creditor has affirmed through an affidavit that the proprietor of Isha foods is Mr. Binod Kumar Chaudhary ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....95WB1976PTC-030623, is admitted. (b) There shall be a moratorium under section 14 of the IBC. (c) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. (d) Public announcement of the CIRP shall be made immediately as specified under section 13 of the Code read with regulation 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (e) Mr. Debdas Chakraborty, registration number IBBI/IPA-001/IP-P01794/2019-2020/12758, address: 8, Binay Bala Mukherjee Lane, Uttarpara, Hugli, West Bengal, 712258, email: [email protected] is hereby appointed as Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the Code. He has a Authorisation for Assignment in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professional) Regulations, 2016 valid upto 28 November 2022....