Lim Fa Pte Ltd. vs Staunch Naturals Resources Pvt. Ltd.

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

This Company petition is filed by Lim Fa Pte Limited (hereinafter called “Operational Creditor”) seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Staunch Natural Resources Private 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 USD 8,52,311.43 (United States Dollar Eight Lakhs Fifty Thousand Three Hundred Eleven and Forty Three Cents) to the Operational Creditor.

The brief facts of the case are as follows:-

The Corporate Debtor filed affidavit in reply dated 15.02.2019 of Mr. Hardik Narendra Kumar Shah, the authorized representative of the Corporate Debtor opposing the above Company Petition. The Corporate Debtor mainly raised his defences in Para. 8, Para. 10, Para. 12 and Para. 13 of the reply which are extracted here under:

In response to the above reply filed by the Corporate Debtor the Operational Creditor also filed rejoinder dated 13.03.2019 contradicting the pleas raised by the Corporate Debtor in their reply. The relevant Para’s contradicting the rejoinder are as follows:

In the response to the above rejoinder the Corporate Debtor filed surrejoinder dated 02.09.2021 once again retracting the plea of discharge and non delivery of goods apart from retraction of the above two pleas the Corporate Debtor also raised certain new pleas with regard to the authorization of Mr. Pratik D. Shah of the Operational Creditor and the defective verification clause of the Company Petition etc.,.

It is very clear from the above pleadings that the Corporate Debtor initially in their reply dated 15.02.2019 mainly contented that the Corporate Debtor had already made payment of the entire amount payable towards the goods that had been dispatched by the Applicant specially in relation to the invoices forming subject matter of the present application. With the same breath the Corporate Debtor has raised the plea of non-receipt of goods under the subject matter of invoices both in the reply as well as in the sur-rejoinder. It is a well settled principle of law that a respondent/ corporate debtor in a legal proceeding can raise any number of pleas opposing the case filed against them but not contrary pleas which are destructive to each other. The Operational Creditor in their rejoinder at Para. 16 specifically mentioned that the statement of account of the Union bank of India produced and relied by the Corporate Debtor in proof of the alleged plea of discharge relates to the period from 04.04.2015 to 24.04.2015 and where as the subject matter of invoices relates to the period from February, 2016 to June, 2016. The Operational Creditor along with their rejoinder annexed Email dated 18.10.2016 which is subsequent to June, 2016 where under the Corporate Debtor has given the break up figures of the outstanding dues payable by them to 4 (four) companies in which the outstanding dues of the Operational Creditor is also clearly mentioned. Apart from the above Email the Operational Creditor also filed copy of the letter dated 01.08.2017 addressed by the Corporate Debtor to the Operational Creditor acknowledging their outstanding dues along with interest. The Operational Creditor also annexed copy of blank cheque given by the Corporate Debtor to the Operational Creditor as security for repayment. The Operational Creditor also annexed the Proof of Delivery of the original documents namely the Sales Contract, Invoices, Bill of Lading, Packing List, Certificate of Origin, Certificate of Weight of the subject matter of invoices through courier. In fact the Corporate Debtor also certified the weight of the material by counter signing the certificate. The Corporate Debtor did not dispute the authenticity of the above documents filed by the Operational Creditor along with their affidavit and rejoinder. All the above documents relied by the Operational Creditor in their rejoinder pertains to the subsequent dates of the invoices and he ought not have addressed such letter as a prudent business entity if goods were not delivered to the Corporate Debtor. Therefore it is very clear from the above evidence that the defences raised by the Corporate Debtor does not inspire any confidence.

The Corporate Debtor also raised the issue of non-receipt of Demand Notice in their reply. However the Operational Creditor annexed the copy of the postal receipt and track report evidencing the dispatch and delivery of the Demand Notice on the Corporate Debtor. In addition to this, the Corporate Debtor in their sur rejoinder raised certain new pleas with regards to the authorisation Mr. Patik D. Shah authorised representative of the Operative Creditor and defective verification clause in the Company Petition which are clearly hit by the Doctrine of “Constructive Resjudicata”.

This bench notes that the Operational Creditor has successfully proved the existence of “debt” and “default” in this case. The above Company Petition being filed on 28.03.2018 is well within 3 (three) year from the date of subject matter of the invoices and is well within limitation.

For the aforesaid reasons this Bench is of the considered opinion that the above defences raised by the Corporate Debtor in the present Company Petition are out and out falsehood invented only for the purpose of avoiding the liability and no inference of “pre-existence of dispute” can be drawn from the above pleas raised by the Corporate Debtor. The bench is also of the considered opinion that no further investigation or evidence is required to reject the above pleas of the Company Petition.

In view of the above observations, this Bench is of the view that the above Company Petition satisfies all the legal requirements for admission and deserves to be admitting. Accordingly this bench admit the above Company Petition by passing the following: