Jigar Kanti Chheda vs S. K. M. Real Infra Limited

Per: Shri H.V. Subba Rao, Member (Judicial)

This Company petition is filed by Jigar Kanti Chheda (hereinafter called “Operational Creditor”) seeking to initiate Corporate Insolvency Resolution Process (CIRP) against S. K. M. Real Infra Limited (hereinafter called “Corporate Debtor”) alleging that the Corporate Debtor committed default in making payment to the Operational Creditor by invoking the provisions of Section 9 Insolvency and Bankruptcy code (hereinafter called “Code”) read with Rule 6 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for an unresolved Operational Debt of Rs. 32,00,000/- to the Operational Creditor.

The brief facts of the case as follows:-

The Corporate Debtor filed affidavit in reply dated 17.03.2021 of Ms. Mansa Bhatia, the authorized representative of the Corporate Debtor opposing the above Company Petition on the ground of maintainability and also pre-existing disputes between the parties.

The main contention of the Corporate Debtor is that the Operational Creditor has not performed his professional obligations in carrying out the civil work of breaking and cutting RCC. The Corporate Debtor also alleges that the Operational Creditor has also carried out manipulations and discrepancies in various challans/ bills raised by them. The Operational Creditor colluded with the site supervisor in manipulating and raising grossly inflated bills on the Corporate Debtor, which are apparent from the bills/challans raised by them. The Corporate Debtor also alleges that the Operational Creditor has avoided furnishing details of work done, in an attempt to raise inflated bills.

After hearing the submissions on both the sides, this bench notes that the above Company Petition is filed by the Operational Creditor in respect of four defaulted instalments dated 01.06.2019, 01.07.2019, 01.08.2019 and 01.09.2019 respectively as per the consent terms filed by both parties before the Hon’ble Bombay High Court in Company Petition bearing No. 311/2016. After filing the present Company Petition the remaining instalments of 01.10.2019, 01.11.2019 and 01.12.2019 have also become due and payable for which we are not concerned. The Corporate Debtor is estopped from raising all the above pleas having admitted the liability and filed the consent terms undertaking to repay the amount as per the payment schedule mentioned in the Consent Terms. However, the Corporate Debtor once again making an unsuccessful attempt by raising all the above pleas so as to give a colouring as if there is a pre-existing dispute between the parties which is legally impermissible. Under these circumstances this bench is of the view that the existence of “debt” and “default” stands proved through the consent terms and the Corporate Debtor has no valid defence and the above Company Petition deserves to be admitted even without giving opportunity to the Corporate Debtor. Accordingly, the above company petition is admitted by passing the following:

a. The above Company Petition No. (IB) – 3770 /MB/2019 is hereby allowed and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against S. K. M. Real Infra Limited.

b. Since the Operational Creditor has not suggested the name of IRP to perform the duties of the Interim Resolution Professional (IRP) in the petition, this Bench is appointing the IRP from the list furnished by the Insolvency and Bankruptcy Board of India (IBBI). This Bench hereby appoints Ms. Neeraja Kartik Insolvency Professional, Registration No: IBBI/IPA-001/IP-P01445/2018-19/12137, having E-mail Address: [email protected] and having Phone No: (+91) 9922508850 as the interim resolution professional to carry out the functions as mentioned under the Insolvency & Bankruptcy Code, 2016.

c. The Operational Creditor shall deposit an amount of Rs. 2 Lakhs towards the initial CIRP cost by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order.

d. That this Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor.

e. That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period.

f. That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.

g. That the order of moratorium shall have effect from the date of pronouncement of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, as the case may be.

h. That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of the Code.