AI Drafter 
TaxTMI 
TaxTMI 
2024 (5) TMI 1672
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....lf of the Operational Creditor: 4.1 The case of the Petitioner is that the Corporate Debtor had hired the Operational Creditor for supply of hard coke (herein after referred to as "said goods") by issuing purchase orders [Annexure "C"] on several dates between 19.05.2012 and 01.04.2013. The operational creditor had duly delivered the hard coke as per the quality standards prescribed in the purchase orders issued by the corporate debtor and accordingly raised invoices [Annexure "D"] amounting to an aggregate sum of Rs. 6,46,66,752/- against the goods supplied from time to time. The Corporate Debtor used to receive the same without demur and pay on account basis. No method of payment was fixed between the parties. 4.2 Each of the aforesaid invoices has been acknowledged by the corporate debtor and as such made part payments [Reflected in bank Statements, in Annexure "E"] aggregating to an amount of Rs. 4,40,93,161/-as on March 13, 2016 against the outstanding invoices, which has been adjusted and can been seen through the calculation sheet attach with the instant petition. 4.3 In such business course of time some debit notes and credit notes were also issued by the parties w....
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....re "O"] dated 20.04.2022, the Hon'ble High Court at Calcutta ordered for the transfer of the winding up petition being CP./ 613/2016 to this Adjudicating Authority. 4.13 The said petition was listed before this Adjudicating Authority as TP 17/KB/2022 and vide order [Annexure "P"] dated 01.07.2022, this Adjudicating Authority directed the Operational Creditor to complete the compliance of the provisions of section 8 of the Code. 4.14 The Operational Creditor issued the demand notice [Annexure "Q"] dated 09.07.2022 upon the Corporate Debtor which was delivered on 12.07.2022.Reply [Annexure "R"] dated 22.07.2022 to Demand Notice was served by the Corporate Debtor through their Advocates. 4.15 Thereafter, vide order [Annexure "S"] dated 12.08.2022, this Adjudicating Authority directed for filing the petition under Section 9 of Insolvency and Bankruptcy Code 2016. 4.16 Till date no further payments from the Corporate Debtor have been received by the Operational Creditor . 4.17 There is now due and payable an aggregate sum of Rs. 2,53,74,316/- comprising of a principal sum of Rs. 1,74,65,867/- with interest amounting to Rs. 79,08,449/- calculated on the principal amount @ ....
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....cifically stated that the grade/quality of the materials supplied by the Operational Creditor was not good and causing higher consumption resulting in Impex incurring higher input cost in the production of finished goods. Accordingly, Impex had informed the Operational Creditor that necessary deductions would be made from the price payable for the materials supplied by it. Impex had further requested the Operational Creditor to improve the quality of the balance supply, otherwise price deductions would be made for quality issues. All these communications were duly received by the Operational Creditor without objection and as such breach of the terms and conditions of the Purchase Orders was duly admitted by the Operational Creditor. 5.7 Despite Impex's repeated objections as to quality issues and delay at ACL's end in making supply, the Operational Creditor purported to issue a false and concocted notice for initiation of winding up proceedings. The purported statutory notice dated 15th March, 2016 issued by the Operational Creditor could not be replied to by Impex as some of the staff members of the company at the relevant time had issued en masse resignation notice due....
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.... passed infructuous or effectless. 6.5 It is a mere administrative transfer in view of the present view of the Hon'ble Supreme Court of India and the transfer does not allow the corporate debtor to raise further dispute which has been already considered by the Hon'ble High Court at Calcutta, and the corporate debtor has been found in default of such amount. The present Company Petition being T.P. No. 17/KB/2022 is bound to get admitted in view of the fact that a date of the corporate debtor has already crystalized and as such there cannot be any further hearing of the cause of the corporate debtor in any manner whatsoever. 7. Analysis and Findings: 7.1 Heard the Ld. Sr. Counsel on behalf of the Applicant and the Ld. Counsel on behalf of the Respondents and perused the records. 7.2 Upon perusal of the records, we find that the Applicants have filed the instant petition under the ambit of Insolvency and Bankruptcy Code, 2016, and made the same compliant with the provisions of the Code. 7.3 In order to deal with the issue of transferability of the winding up proceedings to this Adjudicating Authority, it is relevant to first refer to the entire provision of sect....
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.... provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959:] Provided also that proceedings relating to cases of voluntary winding up of a company where notice of the resolution by advertisement has been given Under Sub-section (1) of Section 485 of the Companies Act, 1956 but the company has not been dissolved before the 1st April, 2017 shall continue to be dealt with in accordance with provisions of the Companies Act, 1956 and the Companies (Court) Rules, 1959: Provided further that any party or parties to any proceedings relating to the winding up of companies pending before any Court immediately before the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018, may file an application for transfer of such proceedings and the Court may by order transfer such proceedings to the Tribunal and the proceedings so transferred shall be dealt with by the Tribunal as an application for initiation of corporate insolvency resolution process under the Insolvency and Bankruptcy Code, 2016 (31 of 2016). (2) The Central Government may make Rules consistent with the provisions of this Act to ensure timely transfer of all matters, proce....
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.... only winding up petitions, where no notice under Rule 26 of the Companies (Court) Rules was served, were to be transferred to the NCLT and treated as petitions under the Code. However, on working of the Code, the Government realized those parallel proceedings in the High Courts as well as before the adjudicating authority in the Code would stultify the objective sought to be achieved by the Code, which is to resuscitate the corporate debtors who are in the red. In accordance with this objective, the Rules kept being amended, until finally Section 434 was itself substituted in 2018, in which a proviso was added by which even in winding up petitions where notice has been served and which are pending in the High Courts, any person could apply for transfer of such petitions to the NCLT under the Code, which would then have to be transferred by the High Court to the adjudicating authority and treated as an insolvency petition under the Code." 7.6 In the instant matter, it is seen that the Hon'ble High Court at Calcutta, vide order [Annexure "K"] dated 10.08.2018, had already admitted the winding up application for a sum of Rs. 1,74,65,867/- with interest thereon at the rate....
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....e Debtor, in its reply affidavit, has taken the defence of preexisting disputes, no documents in support of such contention have been put on record. As such the same is unmaintainable. 7.11 Similarly, the contention of the Corporate Debtor with regard to the alleged dues payable from the Operational Creditor on account of loss suffered by the Corporate Debtor is also unsupported by proof and therefore untenable. 7.12 Regarding the proper authorization of Mr. Manoj Kumar Bhagat, it is evident from the Resolution [Annexure "U"] passed by the Board of Director of the Operational Creditor in the meeting held on 30.07.2022, that Mr. Bhagat was authorized to take all steps necessary in relation to the legal proceedings against the Corporate Debtor before this Adjudicating Authority. 7.13 Coming to the issue of limitation, since the last purchase order [Annexure "C"] was issued on 01.04.2013. Coupled with the various demands [Annexure "G"] made by the Operational Creditor between 16.08.2013 and 02.05.2015 as well as the demand notice [Annexure "H"] dated 15.03.2016 issued under section 434 of the Companies Act, 1956, the limitation period for filing the instant petition under IBC....
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.... Directions as may be issued by the Insolvency & Bankruptcy Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the Code. (e) The fee payable to IRP or the RP, as the case may be, shall be compliant with such Regulations, Circulars and Directions as may be issued by the Insolvency & Bankruptcy Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the Code. (f) During the CIRP period, the management of the Corporate Debtor shall vest in the IRP or the RP, as the case may be, in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within one week from the date of receipt of this Order, in default of which coercive steps will follow. (g) The IRP/RP shall submit to this Adjudicating Authority periodical reports with regard to the progress of the CIRP in respect of the Corporate Debtor. (h) The Operational Creditor shall initially deposit a sum of Rs. 2,00,000/- (Rupees Two lakh only) with....