2022 (10) TMI 636

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....a) Private Limited, Corporate Debtor (hereinafter referred to as CD) seeking for initiation of Corporate Insolvency Resolution Process (CIRP) against the CD due to default committed by the CD in discharging the debt which is due to the OC. 2. The Application is based on the following facts; i). The OC is also undergoing CIRP by virtue of order of this Tribunal dated 13.01.2021. It was involved in carrying on the business of establishment and manufacture of modern cold storage and deep-freezing plant. ii). The OC has supplied the feed material as evidenced by various invoices, to the CD. Despite several reminders, the CD failed to pay the a mounts due. Hence, the COC of the OC resolved to direct the Resolution Profession....

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....was brought to the notice of the Ministry of Corporate Affairs (MCA) and Form INC-22 was filed by the new management. 5. There is no debt due to the OC from the CD as per the account of the CD, which is handed over to the present management by the earlier Board. As per the Ledger Account, a sum of Rs. 18,68,579/- is payable by the CD to the OC. Last entry of payment is 24.09.2020 for Rs. 25,000/-. The Ledger copy filed by the OC shows that the said amount was entered in the credit column which supports the contention of the CD. Subsequent to that there is no payment at all. 6. Last entry of purchase from the OC as per the ledger is on 26.07.2020 for Rs. 16,36,354/-. There are no purchases thereafter. The entries thereafter are concoct....

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.... material. The track report of the postal department shows the endorsement as the item delivery confirmed on 20.07.2021. The copy of the track record is filed before the Tribunal. Even though the notice was served on 20.07.2021, inadvertently a typographical error occurred in the application as 16.07.2021. Hence, the date of service of the notice need to be considered as 20.07.2021 as evidenced by the track report of the postal department and the date of 10 days expires on 30.07.2021 which is mistakenly typed as 26.07.2021. However, the application is filed on 01.09.2021 after lapse of more than ten days. The other circumstances raised by the CD does not merit any consideration hence, the Company Petition needs to be admitted. 9. Heard t....

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.... In the first instance the Corporate Debtor was set ex-parte and an application was moved by the Corporate Debtor for setting aside the ex-parte order and the same was allowed by virtue of the order dated 14.03.2022. Observing that the notice was booked on 17.07.2021 and not on 16.07.2021 and was delivered on 27.07.2021 but not on 20.07.2021 as mentioned in the counter and the notice sent by the Tribunal on 22.11.2021 is after the Applicant has shifted his office to Vijayawada and Form No. INC 22 shows that the office was shifted to Vijayawada on 03.08.2021 itself this Tribunal allowed the application filed seeking to set aside the ex-parte order. Now the Counsel for the Corporate Debtor, by relying on the observations made by this Court co....

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....e Corporate Debtor. However the same might have lost sight of the concerned due to the work of shifting the office having been going on. Point No. II: The Operational Creditor, as already observed, has been ordered into Corporate Insolvency Resolution Process (CIRP) and this application is preferred by the Resolution Professional (RP) appointed by the Tribunal. During the course of CIRP it came to the notice of the RP that a debt was due from the Corporate Debtor. Hence, this application is filed. The claim is based on certain invoices which are admittedly not accompanied by any purchase orders and are not acknowledged by the Corporate Debtor. The ledger account filed by the Corporate Debtor and the Operational Creditor does not match....

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.... is no other material placed before this Tribunal. The counsel for the OC, along with the written submissions, filed balance sheets to show that the claim amount is due from the CD. The said documents are not admissible, since they are not filed in accordance with the procedure. Even assuming that they are true, there is no specific mention about the debt of the CD. It only shows receivables. As to from whom, is not mentioned. The CD also filed balance sheets. Equally solemn documents are filed by both the parties, like balance sheets and ledger copies. Hence the contentions of both the counsel cannot be accepted. Since the burden of proving the debt is on the OC, he fails due to non filing of any supporting documents to the invoices. Failu....