2020 (5) TMI 724

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....mited by shares and incorporated on 10.11.2008 under the Companies Act, 1956, with the Registrar of Companies (RoC),Maharashtra, Mumbai. Its Corporate Identity Number (CIN) is U01403MH2008PLC188072. It has its registered office currently at Khasra No. 275, Village Sindhivihiri, Tehsil Karanja (G),Sindhivihiri, Wardha 442203, within the State of Maharashtra. Therefore, this Bench has jurisdiction to deal with this petition. 3. The present petition was filed on 06.11.2018 before this Adjudicating Authorityon the ground that the Corporate Debtor failed to make payment of a sum of Rs.1,96,70,419.64 (Rupees one crore ninety-six lakh seventy thousand four hundred and nineteen and paise sixty-fouronly) equivalent to EUR245,451.00 as principal and Rs.79,99,303.56 (Rupees seventy-nine lakh ninety-nine thousand three hundred three and paise fifty-six only)equivalent to EUR99,816.74 as interest as on 04.01.2016, which is stated to bethe date of default. 4. The case of the Operational Creditor is as follows: - (a) The Operational Creditor entered into a Contract being Contract No.20-02-31 dated 25.03.2012 for designing, delivery and installation of PUF sandwich panels, installat....

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....12 for EUR194,103.86. Invoice copy is placed as "Annexure III-G (Colly)" at p.81 of the Petition. (i) The Operational Creditor issued a Demand Notice in Form 3 dated 26.02.2018 calling upon the Corporate Debtor to make payment of a total sum of Rs.1,92,28,631.00 (EUR245,451.00) due on 04.01.2016 as stated in the Demand Notice issued u/s 8 of the IBC, which is placed as "Annexure I" at p.30 of the Petition. (j) The Corporate Debtor has replied to the Demand Notice vide letter dated 13.03.2018 denying all the allegations in the Demand Notice. 5. Mr.Sumeet P. Bodalkar, Learned Counsel appeared on behalf of the Corporate Debtor and made his submissions. 6. The Corporate Debtor had given an opportunity of filing the reply to this Petition but failed to do so. Therefore, the opportunity to file the reply by the Corporate Debtor was closed vide order dated 15.07.2019.However, the Corporate Debtor chose to file a compilation of judgments relied upon by it, which are considered in the subsequent paragraphs. The Ld. Counsel also drew our attention to clause 8.1 of the Contract dated 25.03.2012 regarding jurisdiction to entertain any dispute arising out of the Contract....

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....er is placed as "Annexure III-J" at p.114. (e) The Operational Creditor submits that inspite of various request and reminders made by it to the Corporate Debtor for payment through various emails dated 09.10.2015, 11.02.2017 and 29.10.2017 the Corporate Debtor has failed to make the payments. (f) The Operational Creditor further submits that as on 06.11.2017, the Corporate Debtor has paid a total amount of EUR29,960.00 vide three parts payments of EUR5,000.00, EUR5,000.00, and EUR19,960.00 on 09.06.2015, 28.07.2015 and 04.01.2016 respectively, (at p. 4 of the Written Submission). (g) Thus, the Corporate Debtor had only made a part payment of EUR29,960.00 till date and the same has been accepted by the Corporate Debtor in its reply dated 02.01.2018 to the Legal Notice of the Operational Creditor. 8. Bank statements are also attached as Annexure 'V' at pp. 146-167. 9. The Operational Creditor has filed an affidavit under section 9(3)(b) of the IBC to the effect that there is no notice given by the Corporate Debtor relating to a dispute of the unpaid operational debt. Further the Operational Creditor stated that there is no dispute with respect to ....

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....2013 placed at p. 114 of the Petition. Periodic payments have been made on 09.06.2015 (EUR5000.00), 28.07.2015 (EUR5000.00) and last payment has been made on 04.01.2016 (EUR19960.00), which are reflected from the Bank Statement of the Operational Creditor placed at p.157 of the Petition. Therefore, in terms of section 19 of the Limitation Act, 1963, a fresh period of limitation starts to run from each payment date. 16. In the light of the position of section 19 of the Limitation Act and the orders of coordinate benches of this Tribunal, the limitation period for filing the present claim, as calculated from the date of last payment, that is, 04.01.2016, will end on, 03.01.2019, whereas the present Petition was filed before this Bench on 06.11.2018. Therefore, the claim made in the Petitionis not barred by the limitation. 17. It is noticed from the petition that there is unequivocal admission of liability on the part of the Corporate Debtor in its Letter dated 15.06.2013(Annexure 'III-J' of the petition at p. 114). 18. The Ld. Counsel for the Corporate Debtor has not disputed the liability of the Corporate Debtor in the present proceedings but has chosen to rely on clause 8 ....

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.... given in this regard. 22. The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees that was the limit stipulated under section 4(1) of the IBC at the relevant point of time. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. 23. The Operational Creditor has not proposed the name of any Interim Resolution Professional (IRP) in the matter. 24. It is, accordingly, hereby ordered as follows: - (a) The petition bearing CP(IB) 4270/MB-IV/2018filed by CT-Technologies ApS, the Operational Creditor, under section 9 of the IBC read with rule 6(1) of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) against B.Y. Agro & Infra Limited [CIN:U01403MH2008PLC188072], the Corporate Debtor, is admitted. (b) There shall b....