2022 (9) TMI 566

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....'). 3. The present Petition was filed on 03 August, 2021 before this Adjudicating Authority. The total amount claimed in default is Rs.1,35,14,745/- (Rupees One Crore Thirty Five Lakh Fourteen Thousand Seven Hundred Forty Five only) as on 31 May, 2021. 4. In part II of the Petition the authorized share capital of the Corporate Debtor is Rs. 3,00,00,000/- (Rupees Three Crore only) with subscribed share capital of Rs. 2,94,80,340/- (Rupees Two Crore Ninety Four Lakh Eighty Thousand Three Hundred Forty only). 5. Submissions by the Ld. Counsel appearing on behalf of the Operational Creditor. 5.1 The Operational Creditor is a sole proprietorship concern engaged in the business of Civil Construction. Whereas, the Corporate Debtor is a Company engaged in the business of manufacturing biscuits. 5.2 The Corporate Debtor has issued three purchase orders in favour of the Operational Creditor for carrying out civil structural work. The details of the purchase orders as follows; (i) Purchase order no. 562 dated January 16, 2018 for construction of main building of cashew processing plant ('Project No.1'); (ii) Purchase order no. 563 dated January 16, 2018 for co....

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....uction of the same. 5.9 On 21 June, 2021, the Operational Creditor sent a notice under section 8 of the Code demanding the payment of the outstanding dues. The said notice was delivered on 24 June, 2021. Annexure - G of the Petition, Pages 69 - 87 6. Submissions by the Ld. Advocate appearing on behalf of the Corporate Debtor. 6.1 The Operational Creditor has purposely inflated the amount of the debt to amount Rupees One Crore to come within the jurisdiction of this Adjudicating Authority. There are pre-existing disputes between the parties. 6.2 Further, purchase orders issued by the Corporate Debtor were not accepted by the Operational Creditor, thereby making it clear that they had mala-fide intention of fabricating the contents of the Purchase Orders, thereby inflating the same. The Operational Creditor inflated the quantum of the purchase order massively while raising invoices, which gave rise to the column of extra work. 6.3 The Operational Creditor has annexed an invoice dated 04 August, 2018 and 04 April, 2019. Further, in order to avoid limitation, the Operational Creditor again raised three invoiced dated 10 January, 2020 6.4 With respect to Purchase Order....

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.... delayed despite granting 2-3 extensions thus leading to encroachment of territory and market share by other competitors. Further emails were sent as far back as on 23 November 2018 complaining about inordinate delays in start of manufacturing operations. Even as on October 2018 and June 2019. This, there is an existence of preexisting disputes [Annexure E of the Reply]. 7. Rejoinder to the reply of the Corporate Debtor 7.1 The Corporate Debtor never raised any objection with regard to any work of the Operational Creditor. 7.2 Moreover, the Corporate Debtor fabricated the documents, for instance, the purchase order no.563 consisted of three pages, whereas, the purchase order annexed by the Corporate Debtor has five pages. The signature of the Operational Creditor on pages five has been forged, as well. The Operational Creditor has also lodges a complaint against the Corporate Debtor for forging the signatures. 8. Issues 8.1 Is this instant Application barred by limitation? 8.2 Is there any pre-existing dispute between the parties? Analysis & Findings 9. We have heard the Ld. Counsel appearing on behalf of the Operational Creditor and the Ld. Counsel appea....

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....oint of time. Further, as envisaged under section 9(3)(b) of the Code, an affidavit has also been filed by the Operational Creditor. 16. It is, accordingly, hereby ordered as follows:- a) The application bearing CP (IB) No. 237/KB/2021 filed by Sadhan Kumar Nag, sole proprietor of Nag Construction, the Operational Creditor, under section 9 of the Code read with rule 6(1) of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating CIRP against Saa Vishnu Bakers Private Limited, 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....