Apparels India vs Aban Exim Pvt. Ltd.

The OC viz. Apparels India is a proprietorship concern run by the proprietor Mr. Pardeep having its registration office at Dairy Farms, Post Office Lane, Masoodpur Village, New Delhi-110070. The OC is engaged in the business of several kind of apparels. The CD viz. Aban Exim Pvt. Ltd. incorporated under the Companies Act, 1956 is having its registered office at F No. 210-P No. 12, Suneja Tower, Janakpuri, New Delhi-110058 and bears CIN U51909DL2004PTC127157. It is the case of the OC that on the basis of the order placed by the CD, it delivered the required material at the designated address of the CD and raised invoices dated 22.10.2022. According to the OC, against the delivered goods, it raised invoices upon the CD and despite delivery of goods and invoice being raised, the CD failed to make the payment for the supplied goods. Copies of invoices dated 22.10.2022 along with E-way bill are placed on record as Annexure P-4(Colly.), to the petition. Page No. 44 is a copy of confirmation of accounts dated 09.06.2023 issued by the CD. The confirmation of accounts as placed on record by the OC reads thus:

Ld. Counsel for the Applicant could draw our attention to the demand notice dated 12.06.2023 along with proof of service. The Applicant has also filed affidavit stating therein that the CD did not give any reply to the demand notice. The affidavit is at page No. 28 of the petition. Para 3 of the affidavit reads thus:

Ld. Counsel for the Applicant could also draw our attention to the written communication by the proposed RP namely Mr. Vikram Bajaj registered with ICSI Insolvency Professionals Agency having registration number IBBI/IPA-002/IP-N00003/2016-17/10003. The RP has given his consent and has accepted his appointment in the form-2 viz. the consent of his appointment. The RP has stated that he is eligible to be appointed as RP for CIRP qua the CD and is not facing any disciplinary action. Para V of the page No. 60 of the petition reads thus:

As can be seen from part-IV of the petition, the amount defaulted to be paid is more than the threshold limit i.e. Rs. one crore and the present petition could be preferred within one year from the date of default i.e. 22.02.2023. Part-IV (I & II) of the petition reads thus:

On 17.08.2023, Mr. Nidish Gupta, Ld. Counsel entered appearance on behalf of the CD and sought an opportunity to file reply to the petition. However, despite opportunity no reply had been filed. Last opportunity was granted to CD to file reply within 2 days, subject to payment of cost of Rs. 20,000/- to be deposited in the Prime Minister’s Relief Fund. The receipt of payment of cost should be uploaded on the DMS/record, within given time. The order dated 28.08.2023 passed in this regard reads thus:

When even after the opportunity could given subject to payment of cost of Rs. 20,000/-, the Respondent did not care to file any reply, on 12.09.2023 the proceedings qua it was set ex-parte. The order dated 12.09.2023 reads thus:

In terms of the aforementioned order dated 12.09.2023, both the Petitioner and the Respondent were directed to file independent affidavit clearly indicating therein that the present petition is not a collusive one and there is no relationship between the Petitioner and the Respondent. In terms of the order dated 18.10.2023, it could be recorded that the affidavit in terms of the order dated 12.09.2023 could be filed by the Petitioner. Nevertheless, yet again on 09.11.2023, when only proxy counsel appeared for CD, last opportunity was granted to CD to place on record its last audited balance sheet. However, on 07.12.2023, no one appeared on behalf of the CD and Mr. Aditya Nayyar, Ld. Counsel for the Petitioner submitted that he would procure the latest audited Balance-sheets qua the RoC and would file the same within one week. On 14.12.2023, again there was no appearance on behalf of the CD. Today Mr. Aditya Nayyar, Ld. Counsel for the Petitioner could draw our attention to the affidavit filed on behalf of OC on 17.10.2023, to espouse that the present petition is not collusive one and there is no relation between the OC and the CD. Para 3 of the affidavit reads thus:

As can be seen from the provisions of Section 9(5) of the IBC, 2016, while considering an application filed by the OC, this Adjudicating Authority need to examine as to whether the application is complete, there is no payment of the unpaid operational debt, the invoice of notice for payment to the CD has been delivered by the OC, no notice of dispute has been received by the OC and there is no proceedings pending against any resolution professional proposed under sub-Section 4 of Section 9 of the IBC, 2016. The provision of the Section 9(5) of the IBC, 2016 reads thus:

The Ld. Counsel for the Petitioner could draw our attention to the statement of bank account of the OC to show that the no payment qua the defaulted amount had been made by the CD to the OC. The statement is placed on record at Annexure P-7 of the petition. He could draw our attention to the affidavit filed by Mr. Shiv Prakash, S/o Sh. Munna Lal stating therein that the present petition is not collusive one, but the Respondent is dealing nearly 100 of vendors and the transaction entered into by OC with it is in the normal course of business. Though in para 4 of the affidavit by the CD it is alleged that the goods supplied were defective one, but there is no reference made by the CD to any pre-existing dispute. In view of the aforementioned, particularly for the reason that the requirements stipulated in Section 9(5) of the IBC, 2016 are satisfied, we are left with no option but to admit the present petition. Ordered accordingly.

The Company Petition IB-424/ND/2023 is admitted in terms of Section 9(5) of the IBC. Accordingly, the CIRP is initiated and moratorium is declared in terms of Section 14 of the Code. As a necessary consequence of the moratorium in terms of Section 14(1) (a), (b), (c) & (d), the following prohibitions are imposed, which must be followed by all and sundry:

The Operational Creditor has proposed the name of IP to act as IRP of the CD therefore as suggested by the OC, this Bench appoints Mr. Vikram Bajaj having IBBI Registration No. IBBI/IPA-002/IP-N00003/2016-2017/10003 and Email ID [email protected] from the list of panels of IPs recommended by IBBI to this Adjudicating Authority, subject to the condition that there is no disciplinary proceeding pending against the said IRP. The Adjudicating Authority further orders that:

The IRP is directed to take the steps as mandated under the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC, 2016. The Operational Creditor is directed to deposit Rs.2,00,000/- (Two Lakh) only with the IRP to meet the immediate expenses. The amount, however, will be subject to adjustment by the Committee of Creditors as accounted for by the Interim Resolution Professional and shall be paid back to the Operational Creditor. A copy of this Order shall be communicated to the Operational Creditor, the Respondent and the IRP mentioned above, by the Court/Registry of this Tribunal. In addition, a copy of the Order shall also be forwarded by the Court Officer/Registry to IBBI for their records.