TaxTMI 
TaxTMI 
2022 (7) TMI 575
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.... contains details of particulars of Debt and documents in support of date from which it fell due is claimed. Part V contains the documents, records and evidence of default. 5. Submissions on behalf of the Operational Creditor: 5.1 The case of the Operational Creditor is that a total amount of debt is Rs. 12,97,959/- is due and payable by the Corporate Debtor to the Operational Creditor consisting of a principal amount of Rs. 10,04,484/- and an interest component of Rs. 2,93,475/-. 5.2 The Corporate Debtor had placed two Purchase Orders being PO No. NHBCPL-0208 dated 19th February 2018 and PO No. NHBCPL-006 dated 13th April 2018. Copies of the said 2 Purchase Orders are annexed hereto and marked as Annexure "C". Pursuant to the said purchase orders, the Operational Creditor had supplied soap stone powder and simultaneously raised invoices upon the Corporate Debtor for payment. 5.3 The soap stone powder was duly received by the Corporate Debtor without any dispute and demur and the same was utilized by the Corporate Debtor in its usual course of business. The invoices so raised by the Operational Creditor were also received by the Corporate Debtor without any dispute or demur.....
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.... the Insolvency and Bankruptcy Code, 2016. A copy of the said notice dated 19th November 2019 is annexed hereto and marked with the letter "H". 5.9 It is submitted that the debt fell due after the expiry of 60 days from the date of Invoices which are stated in the chart annexed as Annexure "B". 6. Submissions on behalf of the Corporate Debtor: 6.1 The Corporate Debtor has submitted that it is the manufacturer of talcum powder which is made from talc mineral. The Corporate Debtor entered into an agreement to manufacture talcum powder for M/s. J.K. Helene Curtis Limited, which is the company selling talcum powder talcum powder tinder the brand name "Raymond" and "Park Avenue-. 6.2 It was the condition of M/s. J.K. Helene Curtis Limited (hereinafter referred as "Raymond Group") that the raw material has to be brought from the list of their vendors. Therefore, it was Raymond Group, which constrained the Corporate Debtor to buy raw material from the Operational Creditor on the condition that once the payment is made by Raymond Group for the finished product then only the payment would be made to the Corporate Debtor. Also the price of the talc was fixed as Rs. 5.90 per unit. The ....
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.... and payable by the Corporate Debtor to the Operational Creditor as on date. All the payments received by the Corporate Debtor from Raymond Group has been duly released to the Operational Creditor. As regards, the illegal claim of the Operational Creditor, it is stated that the same is pending from the Raymond Group and as soon as the same is received, the due payments would be made to the Operational Creditor. 6.8 The demand notice dated 18.10.2019 is void and illegal as the same has not been signed by the concerned person in the column prescribed and therefor; there is a patent defect in the said demand notice. Further, the ledger account was neither annexed with the said demand notice nor with the present Petition and therefore, the demand notice and petition are incomplete and hence, void. The ledger account has deliberately been concealed in the demand notice and the Petition to conceal the true facts of the case and the payments already made. 6.9 Further, there is no document attached with the present Petition, which establishes the authority of Mr. Sandeep Baid as the proprietor of the Hi-Tech Minerals and Chemicals. Also, the present Petition has been filed in the indiv....
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....before this Adjudicating Authority. 6.15 It is well settled position of law that the IBC proceedings cannot be used for recovery of the amount. The present proceedings have been initiated with sole motive of recovery of money which is not yet payable and hence, the present petition is liable to be dismissed. It may also be noted that the account of the Corporate Debtor is a solvent Company who is regularly paying its financial creditors. 6.16 There is nothing on record to prove that the Raymond Group has made the payment to the Corporate Debtor for the dues of the Operational Creditor. Also, there is no allegation that after receiving the amount from Raymond Group, the Corporate Debtor is not paying to the Operational Creditor. 6.17 The payment to the Operational creditor was conditional on the fact that it becomes due and payable only on receiving the payments from the Raymond Group. 6.18 The Operational Creditor has also not made the Raymond Group i.e. M/s. J.K. Helene Curtis Limited as party in the present litigation to substantiate its claim that the amount has been paid by them to Corporate Debtor and hence, the debt in issue has become due and payable. It may be noted....
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....absolutely in order and in compliance of law. The Corporate Debtor is trying to raise frivolous issues to bypass its default. A proprietor of a business concern has no separate legal entity from its tradename and hence the skewed claim that the petition is "incomplete and bad in law" is totally misconceived. 7.4 To enclose copy of ledger account with a demand notice is not a mandatory requirement. The outstanding amount has been duly substantiated. Hence, the said objection is vacuous. 7.5 The Corporate Debtor has consciously waived its objections by accepting the delivery of all the goods. Further, the demand notice has been sent in consonance with Rule 5 of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016. 8. Analysis and Findings: 8.1 Heard the Ld. Counsel for the Operational Creditor and the Ld. Counsel for the Corporate Debtor and perused the records. 8.2 First and foremost, the instant petition was filed on 17th January 2020. The petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default surpasses the threshold amount stipulated under section 4(1) of the Code, i.e., Rupees one lakh,....
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....e Adjudicating Authority) Rules, 2016. As such, the Corporate Debtor's contention that the same has not been sent in Form 4 is not maintainable. 8.7 The Corporate Debtor has also contended that since the delivery of the goods was supposed to be done within 5 days and the same was not completed within the said schedule, the instant petition is not maintainable. However, in this regard, it has been made clear that the Corporate Debtor accepted the goods without demur. The said acceptance would amount to acquiescence on part of the Corporate Debtor towards the late delivery of goods, and the Corporate Debtor cannot be allowed to claim it as a defect at this stage. 8.8 In light of the above facts and circumstances, this Adjudicating Authority is satisfied that the Corporate debtor has defaulted in its payment of dues to the Operational Creditor. Further, demand notice has been served on the Corporate Debtor and affidavit under section 9(3)(b) has been attached to the petition. As such the instant petition is complete in all respects. It is, accordingly, hereby ordered as follows:- a. The application bearing CP (IB) No. 582/KB/2020 filed by Sandeep Baid, sole proprietor of Hi....