M/s. Ingram Micro India Private Limited vs M/s. Fbonline Trading Private Limited

That the Operational Creditor herein i.e., Ingram Micro India Private Limited is a Company duly incorporated under Companies Act, 1956, and is engaged in the business of distribution, marketing and sale of Information Technology Products.

That the Corporate Debtor herein i.e, Fbonline Trading Private Limited is a Company duly incorporated under Companies Act, 1956 vide CIN No. U51300DL2012PTC229949 and is engaged in the business of providing wholesale services of household goods including electronic items.

That based upon the reputation of the Operational Creditor, the Corporate Debtor approached the Operational Creditor in order to purchase Information Technology Products distributed, marketed and sold by the Operational Creditor for the day to day business activities of the Corporate Debtor and since January 2016, the Operational Creditor and the Corporate Debtor are engaged in business transactions as the Operational Creditor is providing goods to the Corporate Debtor in terms of purchase orders placed by them.

That during the course of the business with the Corporate Debtor, the Operational Creditor maintained a running current account with the Corporate Debtor and in this regard had issued various invoices.

That an amount of Rs.78,62,126.00/- (Rupees Three Crore Thirty-Six Lakh Thirty-Two Thousand Three Hundred Eighty-Seven and Paisa Seventy) was pending towards the invoices raised by the Operational Creditor.

That as per the policy of Operational Creditor even though there was no provision of credit facility but at the request of the Corporate Debtor, credit facility of 90 days from the date of invoice was extended by the Operational Creditor to the Corporate Debtor.

That the Corporate Debtor had failed to pay the balance payment aggregating to Rs. 78,62,126.00/- (Rupees Seventy Eight Lacs Sixty Two Thousand One Hundred and Twenty Six) against the pending invoices.

That the goods/products supplied by the Operational Creditor to the Corporate Debtor in terms of their purchase orders were of superior quality and no allegations ever raised by the accused pertaining to the quality and quantity of the products and accepted without any demur. That the Operational Creditor has been relentlessly following up with Corporate Debtor in order to recover balance payment/Operational Debt. The Corporate Debtor never raised any dispute against the Operational Debt due towards the Operational Creditor and always accepted the Operational Debt due upon him.

That the confirmation and acknowledgement of the outstanding amount/Operational Debt, due upon the Corporate Debtor towards the Operational Creditor was clear and evident from the email trail dated 29^th June 2019 to 5^th December 2019, shared between the Operational Creditor and the Corporate Debtor.

That it was only after much persuasion from the Operational Creditor, the Corporate Debtor issued a cheque dated 21th July 2020 drawn on Kotak Mahindra Bank, 154 Lok Vihar, Pitampura, Delhi- 110034 for an amount of Rs. 78,62,126.00/- (Rupees Seventy Eight Lacs Sixty Two Thousand One Hundred and Twenty Six Only) towards the disbursal of outstanding liability, which was presented by the Operational Creditor for encashment with their banker, HDFC Bank, Vikhroli Branch Mumbai. The above referred cheque on presentation before the bank was dishonoured and was returned unpaid vide return memo dated 24^th July 2020, which was received by the Operational Creditor on 29^th March 2020, with comments “Payment Stopped By Drawer”.

That after receiving the of memo of dishonour, the Operational Creditor issued legal notices under section 138 of Negotiable Instruments Act, 1881, dated 24^th August 2020 to the Corporate Debtor and its Directors on the addresses available with the Complainant, wherein the fact of dishonour / return of the cheque was intimated and the payment of the said cheque was demanded as per the provisions of the Negotiable instruments Act, 1881.

That even after the legal notice under Section 138 of the Negotiable Instruments Act, 1881 dated 24^th August 2020, was served upon the Corporate Debtor, the Corporate Debtor did not make payment towards the pending amount.

That even after repeated follow up by the Operational Creditor, the Corporate Debtor failed to comply with his obligations to pay the Operational Debt due upon him towards the Operational Creditor. Moreover, the Operational Creditor was left with no other choice but to initiate criminal proceeding against the Corporate Debtor under Section 138 of Negotiable Instruments Act, 1881 before the District Court. That the Operational Creditor initiated criminal proceedings against the Corporate Debtor vide complaint no. SS/815/2020 filed before Ld. Metropolitan Magistrate no. 5 , Vikhroli, Mumbai. That the case was first listed on 15th October 2020 and summon were issued against the Corporate Debtor.

That the Operational Creditor requested several times to the Corporate Debtor to make the balance payment along with interest of unpaid pending amount/operational debt but when no response was received from the Corporate Debtor, the Operational Creditor was left with no other option except to send a demand notice under section 8 of Insolvency and Bankruptcy Code, 2016. A demand notice was sent by the Advocate of Operational Creditor to the Corporate Debtor dated 30th July 2021 under Section 5(1) (a) of Insolvency and Bankruptcy (Application to Adjudicating Authority), Rule 2016 at the registered Office of the Corporate Debtor and vide email dated 31st July 2021 to the registered email address of the Corporate Debtor available on the website of Ministry of Corporate Affairs demanding payment of unpaid operational debt amounting to Rs. 1,21,35,589.75/- (Rupees One Crore Twenty-One Lacs Thirty Five Thousand Five Hundred Eighty Nine and Paisa Seventy Five) which includes the principal amount of Rs. 78,62,126.00/- (Rupees Seventy Eight Lacs Sixty- Two Thousand One Hundred Twenty-Six) and interest (inclusive of GST) of Rs. 42,73,463.75/- (Rupees Forty-Two Lacs Seventy-Three Thousand Four Hundred Sixty-Three & Paisa Seventy- Five) calculated @ 24% per annum from the date on which the principal amount became due till 19^th July 2021.

That the last payment of Rs.1,95,000/- (Rupees One Lacs Ninety Five Thousand) was received by the Operational Creditor from the Corporate Debtor on 06^th March 2020. That the last seven invoices with Invoice no 63ID1901076591 dated 29^th June 2019, Invoice No. 61ID1901035759 dated 29^th June 2019, Invoice No. 58ID1900956345 dated 29^th June 2019, Invoice No.661D1901183511 dated 06^th July 2019, Invoice No. 31ID1900508833 dated 06^th July 2019, Invoice No. 661D1901183897 dated 10^th July 2019, Invoice No.53DD1902689728 dated 12^th July 2019, are still outstanding and have remained partly unpaid till date.

That therefore, an Operational Debt of Rs. 1,21,35,589.75/- (Rupees One Crore Twenty-One Lacs Thirty-Five Thousand Five Hundred Eighty-Nine and Paisa Seventy-Five), which includes the principal amount of Rs. 78,62,126.00/- (Rupees Seventy Eight Lacs Sixty-Two Thousand One Hundred Twenty-Six) and interest (inclusive of GST) of Rs. 42,73,463.75/- (Rupees Forty-Two Lacs Seventy-Three Thousand Four Hundred Sixty-Three & Paisa Seventy- Five) calculated @ 24% per annum is due.

That Corporate Debtor received the demand notice on 31^st July 2021. The Corporate Debtor has neither paid the Operational Debt to the Applicant/ Operational Creditor nor has brought to the notice of the Operational Creditor the existence of any dispute on the record of pendency of any suit or arbitration proceedings filed before the receipt of the Applicants notice.

That the Amount has become due by virtue of the bills/invoices raised by the Applicant on the Corporate Debtor for the services provided by the Applicant/Operational Creditor to the Corporate Debtor and acknowledgement of such payable amount is full and final by the Corporate Debtor by accepting bills/invoices and not raising any dispute regarding it and the Applicant is an Operational Creditor under the code.

That the petitioner has filed the present petition under Section 9 of I.B. Code, 2016 against the Corporate Debtor for principal amount of Rs.78,62,126.00 (Rupees seventy eight lac sixty two thousand one hundred twenty six) and interest inclusive of GST of Rs.42,73,463.75 (Rupees forty two lac seventy three thousand four hundred sixty three and seventy five paise) which is much below the threshold limit stipulated in the GoI notification for the jurisdiction of this Tribunal and the present petition is barred under the provisions of Section 4 of IB Code, 2016 and therefore, liable to be dismissed.

That not a single document or agreement or any undertaking on behalf of corporate debtor has been filed for any interest as alleged in the said claim @ 24% p.a.

That the Corporate Debtor is a very reputed company in the market/field of the business community and not a single penny is/was due of any company till date even to the petitioner also.

That the present petition has been filed by the petitioner completely on misleading of facts, submission and documents, forged and fabricated documents manipulated/created by the petitioner only for the purpose to get a false order from this Tribunal to pressurize the Corporate Debtor and extract huge amount without any basis.

That Section 4 of IB Code, 2016 provides jurisdiction of this Tribunal, to entertain an application the minimum amount due must be Rs. 1 crore and in the present case the alleged amount of debt is Rs.78,62,126.00 (Rupees seventy eight lac sixty two thousand one hundred twenty six only) therefore, the present petition is below Rs 1 Crore and hence liable to be dismissed without any delay.