M/s Aarti Security Services vs M/s. Shahi Infrastructure Pvt. Ltd.

ORDER M.M.KUMAR, PRESIDENT

The Petitioner claiming to be operational creditor has filed the instant Petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') with a prayer to trigger Corporate Insolvency Resolution Process in respect of the respondent M/s Shahi Infrastructure Pvt. Ltd. (for brevity the 'corporate debtor'). It is appropriate to mention that the 'operational creditor' has filed the petition through its sole proprietor Shri Brahmapal Singh.

The Corporate Debtor – M/s Shahi Infrastructure Pvt. Ltd. was incorporated on 09.12.2004 under the provisions of the Companies Act, 1956. The identification number of the Corporate Debtor given is CIN U45201DL2004PTC131102.

It is submitted by the petitioner that a contract of service was entered into between the operational creditor and the respondent-corporate debtor vide letter Ref. No. SIPL/Tropicana/W.O.-1/17 dated 20.02.2017. As per the contract the petitioner-operational creditor provided services of security guard and gunman at the project of the respondent- corporate debtor at Tropicana garden, Centurion Park, Greater Noida, West U.P. A copy of the contract of service has been placed on record (Annexure P-2).

The precise case of the Petitioners is that the total amount in default due to the operational creditor by the corporate debtor as on 31.08.2018 is Rs. 50,35,741/-. The invoices raised by the petitioner and payment made by the Respondent-corporate debtor has also been placed on record in a tabular form (Annexure P-5).

In Part-IV of the Petition, the Operational Creditor has given the details of the total amount of the debt along with the dates of disbursement. In Column 2 of Part-IV of the Application the Operational Creditor has mentioned the amount claimed in default and the date of the default.

In Part V of the Petition the Operational Creditor has mentioned the invoices, bank statements, emails and other related documents under which the operational debt has become due (Annexure P-6 & P-7).

It s further submitted by the petitioner – operational creditor that it had served a demand notice dated 04.10.2018 under Section-8 of the Code on the respondent- corporate debtor. True Copies of the demand notice along with the proof of dispatch and delivery have been placed on record (Annexure P-4). It is further submitted that no reply was received by the respondent- corporate debtor to the said notice.

The counsel of the respondent-corporate debtor put in an appearance on 16.07.2019 after the issuance of notice by the bench on 02.05.2019. As per the order dated 16.07.2019 the respondent-corporate debtor was directed to file a reply and the matter was fixed for arguments. It is pertinent to mention that no reply is filed till date.

A perusal of the statement of account, invoices and ledger account would show that the amount of more than Rs. 50 Lakhs is owed by the corporate debtor to the operational creditor and despite the demand notice under issued under Section-8 the amount has remained unpaid. It is also evident that neither any reply was filed to the notice under section-8 of the IBC nor reply to the instant petition has been furnished despite repeated opportunities granted. The amount has become due and payable. The default stands established and the petition warrants admission.

As a sequel to the above discussion we admit this petition and accordingly initiate the process of CIRP in respect of the Respondent-Corporate debtor. Since the Applicant has not named the insolvency resolution professional, this Tribunal based on the list furnished by Insolvency and Bankruptcy Board of India appoints Mr. Kailash Chander Jain, with registration number IBBI/IPA-001/IP-P01573/2018-19/12407 (email-id sasd32@yahoo.com) and Mobile No. 9810037365, as the Interim Resolution Professional (“IRP”) as no disciplinary proceedings are pending against such an IRP named and disclosures as required under IBBI (insolvency Resolution Process for Corporate Persons) Regulations, 2016 are made within a period of 3 days from the date of this order.

We also declare moratorium in terms of Section 14 of the Code. It is made clear that the provisions of moratorium are not to apply to transactions which might be notified by the Central Government and a surety in a contract of guarantee to a corporate debtor. Additionally, the supply of essential goods or services to the Corporate Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. These would include supply of water, electricity and similar other supplies of goods or services as provided by Regulation 32 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

In pursuance of Section 13 (2) of the Code, we direct that Interim Insolvency Resolution Professional shall immediately (3 days) make public announcement with regard to admission of this application under Section 9 of the Code.

We direct the Operational Creditor to deposit a sum of Rs. 1 Lac with the Interim Resolution Professional to meet out the expenses to perform the functions assigned to him in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the Operational Creditor. The amount however is subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Operational Creditor.

Directions are also issued to the ex-management of the corporate debtor to provide all documents in their possession and furnish every information in their knowledge within a period of one week from the admission of the petition to the IRP, otherwise coercive steps to follow.

There is a general complaint received against the financial creditors, banks, NBFCs and Asset Reconstruction Companies that the amount claimed by them is far more than what is owed by the corporate debtor to them. Many a times the rate of interest is alleged to be exorbitant and allegations are levelled that a penal interest compounded monthly has been charged. We have no mechanism of rectification of claims made. However, the RPs ordinarily have professionals & experts at their disposal and in case the ex-management raises any such issue then the RP must get it settled in order to avoid any injustice to the corporate debtor.

The office is directed to communicate a copy of the order to the Operational Creditor, the Corporate Debtor and the Interim Resolution Professional at the earliest but not later than three days from today. A copy of this order be also sent to the ROC for updating the Master Data. ROC shall send compliance report to the Registrar, NCLT.