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Judgment
By filing this Petition, the Applicant has prayed to initiate the CIRP against the Corporate Debtor for the defaulted amount of Rs.1,29,19,885/- plus interest at the rate of 24%.
For better appreciation of the facts, we would like to refer to part-IV of the Application, the scanned copy of which is reproduced below:
PART IV
PARTICULARS OF OPERATIONAL DEBT
1. Total Amount of Debt. Rs.1,29,19,885/- (Rupees One Crore Twenty-Nine Lakhs Nineteen Thousand Eight Hundred and Eighty-Five Rupees) plus 24% interest. Details of Transactions on Account of which debt fell due, and the date from which such debt fell due. That the Operational Creditor is in the business of carriage of express courier, mails/cargo-domestic and international since, 1996 and has acted as Clearing Agent for the Corporate Debtor. That the Corporate Debtor is a meat exporter and therefore was availing the services of the Operational Creditor as its Clearing Agent since 2017 for facilitating such export For AMRIT SEAR EXPRESS PVT. LTD. That the Operational Creditor was duly raising the invoices for the services given to the Corporate Debtor. Copy of invoices are already attached with the Demand Notice dated 05.02.2020 annexed with the present Petition and are not annexed again.
That the Operational Creditor has sent various reminders to the Corporate Debtor for the unpaid Operational debt which were duly received by the Corporate Debtor. Till date no reply has been given by the Corporate Debtor. However, on receipt of such reminders, the Corporate Debtor has made a payment of meager amount of Rs. 1,34,000.00 (One Lakh Thirty-Four Thousands) on 31.01.2020. Copy of the reminders are already attached with the Demand Notice dated 05.02.2020 annexed with the present Petition and are not annexed again.
That the ledger account of the Corporate Debtor maintained in the books of accounts of Operational Creditor also confirms the outstanding amount of Rs.1,29,19,885/- (Rupees One Crore Twenty-Nine Lakhs Nineteen Thousand Eight Hundred and Eighty-Five Rupees). Copy of the revised Ledger Account of the Corporate Debtor is annexed herewith and marked as ANNEXURE - 4.
That the Operational Creditor had sent a demand notice dated 05.02.2020 as per Form 3 of the NCLT Rules, to the Corporate Debtor, which was duly received by the Corporate Debtor on 07.02.2020, calling upon the Corporate Debtor to make payment to the Operational Creditor of the said Operational Debt of Rs. 1,30,76,885/- (Rupees One Crore Thirty Lakhs Seventy-Six Thousand Eight Hundred and Eighty-Five Rupees) along with interest @ 24%. Copy of the Demand Notice dated 05.02.2020 along with speed post receipt dated 06.02.2020 and tracking report thereon is annexed herewith and marked as ANNEXURE 5 (COLLY).
That the Corporate Debtor transferred an on account payment of Rs. 1,57,000/- through NEFT into the account of Operational Creditor on 06.02.2020 acknowledging the debt owed by it to Operational Creditor. Copy of Bank Statement indicating receipt of Rs. 1,57,000/- into the account of Operational Creditor is annexed herewith and marked as ANNEXURE - 6.
That the Operational Creditor has sent a letter to the Bank to provide the Bank Certificate which is required to be filed with the Application Under Section 9 of the Insolvency and Bankruptcy Code, 2016 in terms of compliance under section 9 (3) (c) of Insolvency and Bankruptcy Code, 2016. Copy of
| the Letter written to the Bank along with the Speed Post Receipt is annexed herewith and marked as ANNEXURE - 7 (COLLY). | ||
| 2. | Amount claimed to be in default and the date on which the default occurred (Attach the workings for computation of default in tabular form) | Rs. Rs.1,29,19,885/- (Rupees One Crore Twenty-Nine Lakhs Nineteen Thousand Eight Hundred and Eighty-Five Rupees) along with interest @ 24%. Since the last invoice raised and presented by the Operational Creditor was on 13.01.2020, therefore, the date of default is 13.01.2020 i.e. on the date of presentation of invoice. The last payment received from the Corporate Debtor was on 07.02.2020. |
Heard the Ld. Counsel appearing for the Applicant, who submits that despite several adjournments given to the Corporate Debtor, the Corporate Debtor has failed to appear, therefore, vide order dated 16.03.2022, the right of the Corporate Debtor to file the reply was closed. A demand notice was duly delivered to the Respondent and in support of its contention, Ld. Counsel has placed reliance on the tracking report placed at page 37 of the application, the scanned copy of which is reproduced overleaf :
2/20/2020 Track Consignment Sign In Register ✓ नैं के हिन्दी 37 You are here Home>> Track Consignment Quick help Track Consignment * Indicates a required field. * Consignment Number ED278138166IN Track More
Booked At Booked On Destination Pincode Tariff Article Type Delivery Location Delivery Confirmed On New Delhi GPO 06/02/2020 15:39:49 110006 188.80 Inland Speed Post Delhi GPO 07/02/2020 15:09:18 Event Details For : ED278138166IN Current Status : Item Delivery Confirmed
| Date | Time | Office | Event |
|---|---|---|---|
| 07/02/2020 | 15:09:18 | Delhi GPO | Item Delivery Confirmed |
| 07/02/2020 | 09:24:50 | Delhi GPO | Out for Delivery |
| 07/02/2020 | 07:28:43 | Delhi GPO | Item Received |
| 06/02/2020 | 17:53:49 | New Delhi GPO | Item Dispatched |
| 06/02/2020 | 17:04:41 | New Delhi GPO | Item Bagged |
| 06/02/2020 | 15:39:49 | New Delhi GPO | Item Booked |
Ld. Counsel further submits that the Respondent on 31.01.2020 has paid an amount of Rs.1,34,000/- and the last payment was made on 06.02.2020 as per the Statement of Account placed at page 1370, the scanned copy of which is reproduced overleaf :
STATEMENT OF ACCOUNT INDIAN BANK S D ENCLAVE BRANCH A B 20, Safdarjung -
Development Enclave New Delhi 110029 Branch Code: 298 Phone No: 26175763 AMRIT SEAIR EXPRESS PVT. LTD. 224, BASEMENT, SANT NAGAR Account No. : 871340819 EAST OF KAILASH Product : OD IND SME SECURE -MIC NEW DELHI-110065 110065 Currency : INR Statement From 01/12/2019 to 04/03/2020 Date : 04/03/2020 Time : 11:54:29 E-mail : Nominee name : Cleared Balance : 91,72,425.79Dr Uncleared Amount : 0.00 Page No. : 25 Limit : 95,00,000.00 Drawing Power : 95,00,000.00 Int. Rate : 9.90 % p.a.
Post Dt Val Dt Details Chq.No. Debit Credit Balance BROUGHT FORWARD 85,48,527.11Dr MUMBAI F ORT IBUSER-SHRIDA UD SAA80549511 RM 97161000121 31/01/20 31/01/20 R INTEREST 34,228.00 85,82,755.11Dr MUMBAI F ORT 01/02/20 01/02/20 Y VOUCHER TFR 3,00,000.00 82,82,755.11Dr MUMBAI F ORT AMRIT SEAIR EXPR RTGS - HDFCR5202002016720324 RM 98905000120 01/02/20 01/02/20 Y VOUCHER TFR 13,75,860.00 69,06,895.11Dr MUMBAI F ORT AMRIT SEAIR EXPR RTGS - HDFCR5202002016720227 RM 98905000120 01/02/20 01/02/20 Y VOUCHER TFR 6,00,000.00 63,06,895.11Dr MUMBAI F ORT AMRIT SEAIR EXPR RTGS - ICICR5202002010073069 RM 98905000120 03/02/20 03/02/20 EMT THRU CHQ 792583 98,005.00 64,04,900.11Dr KAPASHED A DCTMIPL RECEIVA IDIBH20034489736 03/02/20 03/02/20 EMT THRU CHQ 792604 98,005.00 65,02,905.11Dr KAPASHED A ELHI CARGO SERV IDIBH20034489907 05/02/20 05/02/20 Y CLEARING CHQ 146874 8,642.00 64,94,263.11Dr SERVICE BRANCH ( 59 013 CTS-CHQ:146874 05/02/20 05/02/20 EMT THRU CHQ 792606 4,30,028.00 69,24,291.11Dr NEHRU PL ACE MRIT SEAIR EXPR IDIBR5202002051998348B 05/02/20 05/02/20 Y VOUCHER TFR 1,19,957.00 68,04,334.11Dr MUMBAI F ORT TAURUS FORWARDER 000082549771 RM 97161000121 06/02/20 06/02/20 Y CLEARING CHQ 102894 1,511.00 68,02,823.11Dr SERVICE BRANCH ( 40 375 CTS-CLG:102894-CLG:102894/HDPC 06/02/20 06/02/20 Y CLEARING CHQ 020205 11,936.00 67,90,887.11Dr SERVICE BRANCH ( UNJAB AND SIND BANK 375 CTS-CLG:020205-CLG:020205/PSB 06/02/20 06/02/20 Y VOUCHER TFR 1,57,000.00 66,33,887.11Dr MUMBAI F ORT HAMD FOODS PRIVA AXIBP00099468324 RM 97164000128 07/02/20 07/02/20 Y CLEARING CHQ 041747 50,513.00 65,83,374.11Dr SERVICE BRANCH ( UNJAB NATIONAL BANK CARRIED FORWARD : 65,83,374.11Dr Statement Summary Dr. Count 189 Cr. Count 146 7,87,18,474.00 5,81,54,657.71 In Case Your Account Is Operated By A Letter Of Authority/Power Of Attorney Holder, Please Check The Transaction With Extra Care.
He further submits that an affidavit under Section 9(3)(b) of IBC, 2016 has already been filed, which is placed at page 1407 & 1408 of the Application and no dispute has been raised by Corporate Debtor, the scanned copy of which is reproduced below:
BEFORE THE NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH
COMPANY PETITION NO. (IB) ___ OF 2020
IN THE MATTER OF:
M/S AMRIT SEAIR EXPRESS PRIVATE LIMITED ...OPERATIONAL CREDITOR V/S
M/S HAMD FOODS PRIVATE LIMITED ...CORPORATE DEBTOR
AFFIDAVIT IN PURSUANCE TO SECTION 9 (3) (b) TO THE EFFECT THAT NO NOTICE IS GIVEN BY THE CORPORATE DEBTOR RELATING TO A DISPUTE OF THE UNPAID OPERATIONAL DEBT
I, Shri. Ravinder Sharma, son of Shri. G.S. Sharma, aged about 47 years, resident of A-2/53, Ashirwad Apartments, Paschim Vihar, New Delhi - 110063, do hereby solemnly affirm and state as under: -
1)That I am deposing on the basis of my own knowledge and the documents & records available with the Applicant, maintained during the ordinary course of business, all of which I believe to be true and correct.
2)That I confirm and reiterate the stands stated in the Insolvency Application, the above captioned application, and pray that the same be treated as a part and parcel of the present Affidavit.
3)That I state that the Corporate Debtor is admittedly indebted to the Operational Creditor for the sum of Rs.1,29,19,885/- (Rupees One Crore Twenty-Nine Lakhs Nineteen Thousand Eight Hundred and Eighty-Five Rupees) along with 24% interest and in respect of the Operational Creditor's claims for the aforesaid due amount, I state that I have relied on the documents as specified in the said Insolvency Application.
4)That the Operational Creditor had sent a demand notice under FORM 3 of sub-rule 1(1) of Rule 5 of the Insolvency and Bankruptcy Code, 2016 and no reply to the said demand notice was ever received by the Operational Creditor.
5)That the Operational Creditor reaffirms that there is no dispute of unpaid operational debt pending between the parties in any Court of Law or Authorities as on date.
VERIFICATION
I, the above named deponent, do hereby verify that the contents of my foregoing affidavit are true to the best of my knowledge and belief and nothing material has been concealed therefrom.
Verified at Delhi on this ___ day of March, 2020.
On perusal of the averments made in the application and the documents on record, we notice that no reply to the demand notice has been sent by the Corporate Debtor. Even the Corporate Debtor has not appeared and filed its reply. Therefore, we have no option but to accept the averments made in the part-IV of the application regarding the defaulted amount, which is still due and payable by the Corporate Debtor.
Under such circumstances, in terms of Section 9(5) of the IBC, 2016. It is seen that the application is complete, no operational debt was paid and even no dispute has been raised. The Applicant has not proposed the name of the IRP.
In given facts and circumstances, the Operational Creditor has established the default on the part of Corporate Debtor in payment of the operational debt. The Petition filed under Section 9 fulfils all the requirements of law. Therefore, the Petition is ADMITTED in terms of Section 9(5)(i) 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:
"(a)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;
(b)Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein;
(c)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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) The recovery of any property by an owner or lessor, where such property is occupied by or in the possession of the Corporate Debtor.”
Since there is no IRP proposed by the Operational Creditor. Therefore, this Bench appoints Mr. Kewal Krishan Saini having IBBI Registration No. IBBI/IPA-002/IP-N00629/2018-1911854 (Email : [email protected]) from the list of panel of IPs recommended by IBBI to this Adjudicating Authority.
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 Corporate Debtor and the IRP mentioned above, by the Registry of this Tribunal. In addition, a copy of the Order shall also be forwarded by the Registry to IBBI for their records.