M/s. Classic Microtech Pvt. Ltd. vs M/s. Adison Granito Pvt. Ltd.

The applicant is the Operational Creditor of the respondent CD, has filed this application under Sec 9 of IBC 2016 with all relevant data, invoices and proof of documents stating that an amount of debt of Rs.6,39,46,214 (comprising Rs.5,59,00,374 and Rs.80,45,840 towards interest) is due and payable by the respondent Corporate Debtor towards goods supplied through various invoices and e-way bill delivery receipts with acknowledgments enclosed to this application. The applicant has enclosed the ledger statements for the period from 23^rd Nov 2018 to 14 Oct 2022, evidencing that the applicant has been supplying Feldspar powder to the respondent since 23 Nov 2018. It is stated that the date of default started on 20 Oct 2021 onwards. On non payment of due, the applicant issued a demand notice under Sec 8 of the IBC on 17 Feb 2023 by email dated 20 Feb 2023, has also duly enclosing the postal receipts to this application.

Even though the applicant has been regularly supplying the stated goods through proper procedure through lorry service, evidenced of having received, the respondent has not been paying the goods from Sept 2021. Even though on regular occasions he had demanded payments the same was not made by the respondent. The cheques (6) issued for an amount of Rs.60 lakhs in favour of the applicant were issued by the respondent were returned by the bank stating that the relevant account was closed.

There was no dispute raised on receipt of goods which were acknowledged hence the computation as evidenced in the ledger sheet is provided as evidence and an amount of Rs.6,39,46,214 is due from the respondent. Further even though the notices were issued and sent to the respondent by speed post to the registered address on 17 Feb 2023, they were returned back with the endorsement “Addressee left without instructions” on 21^st February, 2023. Further, the applicant as per Rule 5 of IBC issued another notice under Sec 8 of the IBC dated 20^th Feb 2023 through email available in the master data of the Corporate Debtor and its directors. The demand notices issued to the Corporate Debtor dated 17^th Feb 2023 were sent to the factory address of the Corporate Debtor at Sabarkantha, which were delivered on 25^th February, 2023. Even though 10 days period of notice was provided no reply was given.

The applicant also places certain judgments for reliance of the debt due in case of Civil Appeal No.15135 of 2017 in Macquarie Bank Ld Shipi Cable Technologies Ltd. The applicant has provided around 16 volumes of the relevant document, pursis, CA certificate on 12^th Nov 2024 as per directions of the copies of its ledger through statutory auditor and necessary written submissions on 20 January 2025. The applicant seeks through prayers admitting this application under Section 9 of IBC and declare moratorium as per the procedure laid down in IBC for recovery of his debt.

The respondent filed his reply on 28^th February 2024, denying all the allegations, but admitting that he had procured the goods from the applicant and of the amount claimed in the application of Rs.6,39,46,214.49 ps as on 31 Jan 2023 is disputed. He further stated that one of the member of the petitioner company had stated by whatsup communication that an amount of Rs.2,61,57,439 was due to be paid (also confirmed by Mr Rameshbhai Shivabhai Patel on 29 July 2022). It is also submitted that as per the provisions of Companies Act, 2013 read with Companies (Accounts) Rules 2014, the Private Limited Company is required to get its accounts audited by the statutory auditor including tax audit of its financial statements. Since the entire amount shown outstanding is based on a self prepared balance sheet, hence the petitioner has not enclosed statutory audit report and tax audit report to substantiate the claim amount of Rs.6,39,46,214.49 ps as on 31 Jan 2023. In view of the discrepancy and non compliance, the application is to be rejected.

In this regard, the respondent also relied upon the judgment of Honble Supreme Court of India in CA 9405 of 2017 in the matter of Mobilox Innovations Private Ltd vs Kirusa Software Pvt Ltd. It is stated that based on this judgment on account of the dispute raised, the petitioner's case is to be rejected as the evidence is raised on a self prepared balance sheet. Since no section 9 application can be allowed based on a disputed amount the same has to be rejected.

The respondent also filed another IA 741 of 2024 stating that the AA had passed an ex parte order against the respondent closing his rights to file any reply on 22 Dec 2023 for which an IA 303 of 2024 was filed by the respondent which was allowed in pursuance of which he has filed his reply on 28 Feb 2024. The applicant in CP IB 102 of 2023 was also directed to file rejoinder which was not filed in the main CP IB. The respondent raised the same issue of the difference in the amount of claim by filing this IA seeking substantiation and production of documents mentioned in Para 8 of the present IA 741 of 2024. The CD had asked for the certified copy of the Statutory Auditor in terms of Company Act provisions.

The applicant and the respondent argued both the matters.

The applicant had produced by affidavit a CA certified ledger of account. The respondent stated that he is only prepared to pay Rs.2,61,57,439 which the amount stated to be payable only of the members of the applicant operational creditor. This was stoutly denied by the applicant who also stated that necessary records in detail have been produced. When the respondent CD was asked to show the proof of having paid the remaining amount of invoices due, he was not able to produced and admitting that they have not been submitted.

The applicant has proved with documents the debt due with invoices and deliveries. This has not been disputed before issuance of demand notice on quality of goods or for any other reason by respondent. At this stage the respondent cannot contend based on whatsup message whatsoever that only a small portion of the debt is payable. Even if so, there are proof that the applicant was not found at its registered office and also such messages does not reduce the debt as the applicant could not show the repayment of remaining amount. The applicant has complied with the order and produced CA (statutory auditor) certified ledger account summaries again in detail by affidavit.

In view of the above we pass the following order