M/s Diamond Trading Co. vs M/s Instamedico and IT Services Pvt. Ltd. (OPC)

The present Petition has been filed by M/s Diamond Trading Co. ('Operational Creditor'/ 'Petitioner') seeking initiation of Corporate Insolvency Resolution Process ('CIRP') against M/s Insta Medico and IT Services Pvt. Ltd. (OPC) ('Corporate Debtor'/ 'Respondent') under Section 9 of the Insolvency and Bankruptcy Code, 2016 ('IBC'/'Code') read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 ('Rules').

The Petitioner, M/s Diamond Trading Co, has stated that the Corporate Debtor placed orders for purchasing granite slabs on credit basis and failed to clear the invoices raised against it. Hence, the instant Petition has been filed alleging default on the part of the Corporate Debtor for non-payment of the operational dues amounting to Rs. 15,09,577/- (Rupees Fifteen Lakh Nine Thousand Five Hundred and Seventy-Seven Only) being the principal amount and interest thereon @18% P.A.

The Respondent is a One Person Company ('OPC') incorporated under the provisions of the Companies Act, 2013 on 20.09.2016, duly registered with the Registrar of Companies, Jaipur having CIN U74999RJ2016OPC056033 and its

registered office is situated at E-15, Kings Street, 1^st Avenue, Lal Bahadur Nagar (West) JL Nehru Marg, Jaipur, Rajasthan, India, 302018. The authorized share capital and the paid-up share capital of the Respondent is Rs. 1,00,000/- (Rupees One Lakh Only). The same has been verified from the online database maintained by the Ministry of Corporate Affairs.

The present Petition has been filed on the following set of facts:

It is stated that the Corporate Debtor issued purchase orders between 05.04.2018 and 17.04.2018 for supply of granite slabs on credit basis. In pursuance of the purchase orders, the Operational Creditor supplied the products of the requisite standards to the Corporate Debtor on credit of 7 days to be counted from billing/ invoice date. Further, the Operational Creditor raised three invoices dated 05.04.2018, 07.04.2018, 17.04.2018 amounting to Rs. 15,09,577/- (Rupees Fifteen Lakh Nine Thousand Five Hundred and Seventy-Seven Only) against the Corporate Debtor.

The Corporate Debtor failed to clear the invoices and defaulted in making the payment towards the invoices. Thereafter, the Operational Creditor issued a demand notice dated 16.04.2018 under Section 8 of the code in Form 3 along with a copy of the invoices in Form 4. It was stated that the Corporate Debtor avoided the service of the demand notice and kept its premises closed. However, the service of the demand notice shall be deemed to be completed on the Corporate Debtor on its registered address. Further, the Operational Creditor also sent the aforementioned demand notice at the residence of the director, the alternative office address of the Corporate Debtor, and the registered email address of the Corporate Debtor.

Hence, the instant Petition has been filed alleging a default of Rs. 15,09,577/- (Rupees Fifteen Lakh Nine Thousand Five Hundred and Seventy-Seven Only) and interest thereon @ 18% P.A. Further, it was stated that the debt fell due between 05.04.2018 and 17.04.2018. 4.4. The relevant details as reflected in Part IV of the Application are reproduced hereunder:

The Petitioner has also filed additional affidavit vide Diary No. 1730/2019 dated 30.08.2019 to showcase the completion of service of notice under Section 8. In the affidavit it was stated that the Corporate Debtor had changed the registered address of the Company with effect from 05.04.2019. It was submitted that the Operational Creditor had also posted the demand notice on 20.10.2018 on the registered address as available during that time. Further, the demand notice was duly served on the Corporate Debtor via registered post at its then registered address, email, and at the residential address of its director.

The Operational Creditor filed an Affidavit vide Diary No. 1108/2022 dated 13.04.2022 in compliance of the Order of this Adjudicating Authority dated 23.10.2019 bringing on record its bank statements to demonstrate default on part of the Corporate Debtor.

The Respondent had filed its Reply vide Diary No. 518/2025 dated 18.03.2025 wherein it made the following submissions: -

It was stated that the Petitioner and the Respondent did not have a standard buyer-seller relationship. The Respondent acted as a facilitator for the Petitioner to supply goods to M/s Unique Exports and Infrastructure. The Respondent in its role as an intermediary provided quotations to M/s Unique Exports and Infrastructure inclusive of a margin for the facilitation services. Further, the invoices raised by the Petitioner on the Respondent were conditional on the Respondent receiving payment from M/s Unique Exports and Infrastructure. Thus, the Respondent's obligation was contingent upon receiving payment from M/s Unique Exports and Infrastructure.

It was stated that the Petitioner raised the following invoices against the Respondent: -

The Respondent in turn raised the following sales invoices upon M/s Unique Exports and Infrastructure: -

It was stated that the goods were directly delivered by the Petitioner to M/s Unique Exports and Infrastructure and the Respondent did not take the possession or benefit of the goods. The transaction was conditional upon receiving payment from M/s Unique Exports and Infrastructure as per the verbal agreement between the Operational Creditor and the Respondent. Further, the Respondent has initiated legal proceedings against M/s Unique Exports and Infrastructure for dishonour of cheque under Section 138 of the Negotiable Instruments Act. Thus, the Respondent prayed for dismissal of the instant Petition.

We have heard the Ld. Counsels for the parties and perused the averments made in the Petition, Reply, and all the documents enclosed with the Petition.

The present petition has been preferred by the Petitioner for default of Rs. 15,09,577/- (Rupees Fifteen Lakh Nine Thousand Five Hundred and Seventy-Seven Only). The date of default is stated to be between 05.04.2018 and 17.04.2018. The learned counsel has drawn our attention to the 3 invoices dated 05.04.2018, 07.04.2018 and 17.04.2018 amounting to Rs. 3,94,704/- (Rupees Three Lakh Ninety-Four Thousand Seven Hundred and Four Only), Rs. 8,66,185/- (Rupees Eight Lakh Sixty-Six Thousand One Hundred and Eighty-Five only) and Rs. 2,48,688/- (Rupees Two Lakh Forty-Eight Thousand Six Hundred and Eighty-Eight). As per the invoices, the amount is to be Paid within 7 days of the billing date failing which the same shall be subject to payment of interest @ 22 per annum. It deserves to be stated that the amount of default in Part IV of the Petition is stated to be only the principal amount i.e., Rs. 15,09,577/- (Rupees Fifteen Lakh Nine Thousand Five Hundred and Seventy-Seven Only) and the interest component is provided as 18% P.A. Further, the element of interest has not been computed into the default amount.

The case of the Petitioner is that the Demand Notice under Section 8 dated 16.10.2018 was duly served upon the Respondent and the same was sent to the registered address and the alternate address of the Corporate Debtor as well as at the address of its director. It was stated that the Respondent neither gave any reply to the Demand Notice nor made any payment qua the outstanding invoices, and hence, the Petitioner was left with no other option but to file the present Petition.

The Respondent on the other hand has not denied the pendency of the outstanding amount on its part, the only plea raised by it justifying the non-payment was that it was acting as an intermediary between the Petitioner and M/s Unique Exports and Infrastructure. It was stated that the Corporate Debtor was only liable to make the payment upon the receipt of the said amount from M/s Unique Exports and Infrastructure as the goods were directly delivered by the Petitioner to M/s Unique Exports and Infrastructure. Hence, the liability would arise only after the Respondent receives the payment from M/s Unique Exports and Infrastructure. It was submitted that in the present case, M/s Unique Exports and Infrastructure failed to pay the Respondent which has resulted in the non-payment of the invoices to the Petitioner.

It was also pointed out that the Respondent has already initiated the proceedings against M/s Unique Exports and Infrastructure under Section 138 of Negotiable Instruments Act. Further, the Respondent has alleged an oral agreement with the Petitioner as per which the invoice amount was to be paid to the Petitioner only upon receipt of payment from M/s Unique Exports and Infrastructure.

On perusal of the Petition, it transpires that the same has been filed in accordance with the Code. The Petitioner had served the Demand Notice dated 16.10.2018 upon the Respondent and the same has also not been contested by the Respondent. Further, the amount in default pertains to the invoices dated 05.04.2018, 07.04.2018, and 17.04.2018 and as per the invoices the same was to be paid within 7 days. The instant Petition has been filed on 27.05.2019 which is within the prescribed limitation period.

Further, after having appreciating the contentions of both the learned counsels and having gone through the documents placed on record, it is evident that there is no denial of the due amount on the part of the Respondent/ Corporate Debtor. The plea taken by the Respondent that the amount shall be paid only upon receipt from the said amount from M/s Unique Exports and Infrastructure carries no legals sanctity and does not absolve the Corporate Debtor from its obligation to pay the invoices raised against it.

In the present Petition, the debt and the default stands established and the same has also not been denied by the Corporate Debtor. Thus, we are of the view that in the instant case, all the ingredients laid out under Section 9 are fulfilled. Therefore, we are inclined to initiate CIRP of the Corporate Debtor i.e., M/s Instamedico and IT Services Pvt. Ltd. (OPC).

Further, we hereby appoint Mr. Sunil Kumar having registration no. IBBI/IPA-001/IP-P-02607/2021-2022/14018 as Interim Resolution Professional of the Corporate Debtor from the available list of panel of Resolution Professionals as maintained by IBBI to conduct the Insolvency Resolution Process as mentioned under the Insolvency and Bankruptcy Code, 2016. The email address of the IRP is '[email protected]'.

The IRP is directed to take all such steps as are required under the statute, inter-alia in terms of Sections 15, 17, 18, 19, 20 and 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, and Rules and Regulations thereunder. The Interim Resolution Professional /Resolution Professional to check the genuineness of the claim while admitting the operational dues of the Applicant.

Consequences of initiation of CIRP shall be inter-alia as follows:

The IRP appointed by the Adjudicating Authority is directed to take over the affairs of the Corporate Debtor and duties as required to be performed by him under the provisions of Code including issue of publication in widely circulated Newspapers as contemplated under the provisions of the Code and calling for claims from the creditors of the Corporate Debtor; and collation of the same.

Further, as a sequel of admission, moratorium as envisaged under Section 14 of the Code is invoked in relation to the Corporate Debtor which will be in vogue during the CIRP of the Corporate to Debtor. The IRP shall carry out CIRP strictly as per the timelines specified and as envisaged under the provisions of the Code in relation to the Corporate Debtor.

The said IRP shall act strictly in accordance with the provisions of the Code. This Bench also directs for an advance payment of Rs. 75,000/- (Rupees Seventy-Five Thousand only) to be paid by the Petitioner to the Interim Resolution Professional immediately to initiate the process which shall be adjusted towards the expenses payable to the Resolution Professional. In terms of Section 17 and 19 of the Code all personnel of the Corporate Debtor including promoters and Board of Directors, whose powers shall stand suspended, shall extend all cooperation to the IRP during his tenure as such and the management of the affairs of the Corporate Debtor shall vest with the IRP.

In terms of Section 9 of the Code, this order shall be communicated at the earliest, not exceeding one week from today, to the Applicant, the Corporate Debtor as well as the IRP appointed by this Adjudicating Authority to carry out CIRP. A copy of this order shall also be communicated to IBBI for its records.

Accordingly, CP No. (IB)-124/9/JPR/2019 is admitted.

The Registry is directed immediately to send a soft copy of the instant Application along with this order to the parties along with the IRP appointed herein.