In Re: M/s Exotic Buildcon

“5.

Although it has been submitted that Notice has been issued to all the Secured and unsecured Creditors & an Affidavit to that effect has been attached. Nevertheless, on perusal of the documents submitted by Applicant, it is found that only a list of secured and unsecured creditors along with the default amount has been attached. Proof of Service to such creditors has not been placed on record which raises a doubt as to effective service to such Creditors.

6.

The applicant has also submitted a list of litigations (Annexure – 7 on Pages 73-87) and an affidavit dated 18.10.2023 stating that this application is not filed to defeat the purposes of Law. However, on perusal of those documents, it is found that a notice dated 01.12.2022 has been served by Excise & Taxation Officer cum Assessing authority, Gurugram for the Recovery of Arrears under HVAT Act, 2003 & CST Act, 1956. Notice dated 24.11.2022 u/s 221(1) of the Income Tax Act, 1966, another Notice dated 29.03.2023 u/s 148A(b) of the Income Tax Act, 1961 has also been put on record. An order dated 29.03.2023 by Mr. Ravi DC/ACIT Central CIR-I, Gurgaon against M/s Exotic Buildcon recording that Corporate Applicant has made a total Bogus purchase of Rs. 40,00,000/- in the form of accommodation entries from various parties controlled by Sanjay Jain Group has been passed which is marked as Annexure – 07 on Pages 84-85 of the Application.

7.

Further, warrant of attachment against the movable property of M/s Exotic Buildcon has been issued vide order dated 06.10.2023 by Ld. ADJ Ms. Ruchika Singla, Rohini Courts and has been put up for report of Bailiff on 15.12.2023. It has been recorded in the order that JD Company (M/s Exotic Buildcon) has Assets worth Rs. 101.35 lacs. It has also been recorded that Insolvency Proceedings are initiated against company but moratorium has not been issued till date. The execution order has been obtained by one M/s Medors Biotech Pvt. Limited, whose relation with the Applicant is not known. It is inferred that there must be a decree which is pending for execution against M/s Exotic Buildcon, the Applicant. We may like to mention here that the fact of the execution order has not been put forward by the applicant during oral arguments although they have filed it along with Affidavit in compliance of the Order dated 23.08.2023. (emphasis supplied)

8.

Although, this Adjudicating Authority had admitted the petition in the hearing on 08.11.2023 for initiating CIRP against Applicant but after perusing all the documents put on record by the Applicant, we are of the opinion that initiating CIRP against the Applicant would be interfering with the Jurisdiction of Court of Hon’ble ADJ and in the backdrop of the above-mentioned facts, we find it appropriate to issue notice to all the secured as (IB)-247(PB)/2023 (Exotic Buildcon Private Limited) 5 | P a g e well as Unsecured Creditors along with Income Tax Authority & Excise & Taxation cum Accessing Authority, Ward 10 Gurugram.

9.

The Registry is directed to issue notice to all the creditors along with Income Tax Authority & Excise & Taxation cum Assessing Authority, Gurugram by Email and by Speed Post at their addresses returnable by 20.12.2023. The list of all the creditors with their postal and email addresses has been attached with this order for facilitating the service of the notice by the Registry.

10.

Parties are directed to file their response/reply on the next date of hearing.

11.

Ld. Counsel for Applicant is also directed to place before us the latest development in execution proceedings before the Ld. ADJ, Rohini Courts Complex.”

However, on perusal of the documents on DMS (case management portal) till today, the rejoinder is not seen anywhere. Therefore, Applicant is directed to get in touch with the registry if it is defect and get the document uploaded on DMS Portal.

The only document/affidavit could be seen after 23.09.2024 is Affidavit filed on 30.11.2024 which contains the gist of the matter under section 10. In the proceedings dated 22.10.2024, the same fact of not uploading of affidavit in compliance of order dated 23.09.2024 has been recorded by this Adjudicating Authority. Relevant part is extracted below:

Further, on perusal of the gist of the matter filed by Applicant on 30.11.2024 on DMS, it is found that there is an Affidavit given on 18.12.2023 for status and decree of Medore Biotech Private Limited, an Affidavit dated 19.07.2024, an Affidavit filed on 8^th October 2024 for filing execution proceedings from Medores Biotech Private Limited. Relevant part of the Gist of the matter filed by Applicant is extracted below: However, DMS does not reflect any of these (for reference, see the above attached screenshot of DMS Portal).