M/s. Neo Industries vs M/s. Nikko Auto Limited

PART IV

PARTICULARS OF OPERATIONAL DEBT

1.

Total amount of debt, details of transactions on account of which debt fell due and the date from which such debt fell due

Total Amount of Debt : Rs. 14,73,624/- (Rupees Fourteen Lacs Seventy Three Thousand Six Hundred and Twenty Four only) including the due & payable outstanding Operational Debt of Rs. 10,44,718/- (Rupees Ten Lacs Forty Four Thousand Seven Hundred and Eighteen Only) along with an Interest amount of Rs. 4,28,906/- (Rupees Four Lacs Twenty Eight

Thousand Nine Hundred and Six Only) calculated @ 18% p.a. from the due date till the realization of the amount, as clearly mentioned in each of the pending Invoices, till 18.10.2019 and thereon.

Details of Transactions of account of which debt became due:

1.

That the Operational Creditor is a Partnership Firm registered vide Partnership Deed dated 16.03.2007 having its Income Tax Department PAN Card bearing No. AADFN6620Q. The Operational Creditor is a reputed, renowned Manufacturing Firm engaged in the business of manufacturing and supply of metal nuts based on the dimensions, ordered. Also, the Operational Creditor is MSME registered and the Registration Certificate viz. Udyog Aadhar Memorandum, bears Unique Acknowledgement Number (UAN): HR03B0013348. A copy of the Partnership Deed dated 16.03.2007 along with the copy of Income Tax Department PAN Card bearing No. AADFN6620Q and Registration Certificate viz. Udyog Aadhar Memorandum, bearing Unique Acknowledgement Number (UAN): HR03B0013348 is hereby marked and annexed as Annexure A-1.

2.

That the Corporate Debtor is a company registered under the provisions of the Companies Act, 1956 bearing its Company Identification Number (CIN) as U74899DL1983PLC093808 and was incorporated on 12.03.1983. The Corporate Debtor made purchase orders for Nuts of various dimensions of M4, M5, M6, M7, to which the Operational Creditor supplied the corresponding orders without fail or complaint. A copy of the Master Data of the Corporate Debtor Company as retrieved from the MCA Website is hereby marked and annexed as Annexure A-2. 3. That the Operational Creditor and the Corporate Debtor shared a long business relationship wherein the Corporate Debtor made huge orders for subject Nuts and the Operational Creditor supplied the corresponding orders on day to day basis. 4. It is pertinent to mention here that the Corporate Debtor had issued one Open Purchase Order dated 02.04.2015 bearing No. 15/3OPOC/00010, to the Operational Creditor, whereafter, the Corporate Debtor kept on placing Orders time and again, which were duly adhered to and was delivered by the Operational Creditor without fail or any complaint. A copy of the Open Purchase Order dated 02.04.2015 bearing No. 15/3OPOC/00010 issued For NEO Industries by the Corporate Debtor to the Operational creditor is hereby marked and annexed as Annexure A-3.

5.

That, since April, 2016, various invoices were raised by the Operational Creditor time and again against the several orders placed by the Corporate Debtor and the delivery of the said products accordingly by the Operational Creditor as per the orders raised at the Plants of the Corporate Debtor at:

i.

Plot No. 9G, Sector - 6, Faridabad, Haryana

ii.

Village - Lakeshwari, Bhagwanpur, Haridwar, Uttarakhand.

6.

The last supply made by the Operational Creditor was on 21.06.2018. Till the date, the Corporate Debtor paid to the Operational Creditor in intervals in the running account and used to issue payment advice accordingly. Pursuant to the last supply there were no demand raised by the Corporate Debtor and thus no further supplies, leaving a total admitted balance outstanding to be of Rs. 11,68,173/-. A copy of all the outstanding invoices from 18.10.2016 to 21.06.2018 due & payable by the Corporate Debtor to the Operational Creditor are hereby marked and annexed as Annexure A-4.

7.

Thereafter, several requests were made by the Operational Creditor to the Corporate Debtor to clear off the outstanding dues, whereafter, the Corporate Debtor advanced payments in 3 tranches on 31.05.2018, 06.07.2018 and 01.08.2018, totaling to a sum of Rs. 1,08,700/- as evident from the Bank Payment vouchers dated 31.05.2018, 06.07.2018 and 01.08.2018. Also, it is evident from the said vouchers that the said payments were done against Invoices bearing No. 1377, 1455, 1615, 1507, 1615 and 1616 dated 19.09.2016, 27.09.2016, 14.10.2016, 03.10.2016, 14.10.2016, 14.10.2016 respectively. A copy of the Bank Payment vouchers dated 31.05.2018, 06.07.2018 and 01.08.2018 is hereby marked and annexed as Annexure A-5.

8.

Pursuant to the payments regarding the said invoices mentioned hereinabove and other short payments, the invoices mentioned in the Workings Computation annexed herein with the Petition, were left due and payable by the Corporate Debtor to the Operational Creditor. Thus leaving a balance operational debt outstanding and payable to the tune of Rs. 10,44,718/- (Rupees Ten Lacs Forty Four Thousand Seven Hundred Eighteen only).

For NEO INDUSTRIES

9.

Thereafter, the Corporate Debtor in order to collate the outstanding balances and to acknowledge its debt outstanding, shared the complete Account Statement enlisting all the transactions and details of the payments since the inception, as an attachment vide its Email dated 13.04.2019 to the Operational Creditor.

10.

The Ledger Statement shared by the Corporate Debtor mentions the heading to be Ledger from date: 01.04.2016 to Date: 31.03.2019, Generated By: (XP0019) Pankaj Kumar, On: 13.04.2019. It is an admitted fact from the Ledger statement forwarded by the Corporate Debtor itself shows and acknowledges the balance outstanding to be of Rs. 10,99,927/-.

11.

The Operational Creditor once again requested the Corporate Debtor to share its Ledger Statement vide its Email dated 14.08.2019, to which the Corporate Debtor shared the same Ledger Statement with the Operational Creditor vide its 2 Emails dated 20.08.2019.

12.

Since the Operational Creditor has duly supplied the products on each occasion upon the various demands raised by the Corporate Debtor and the Corporate Debtor has itself vide its Emails dated 13.04.2019 and 20.08.2019 sending its Ledger statement the heading to be Ledger from date: 01.04.2016 to Date:31.03.2019 as on 13.04.2019. Hence clearly it is an admitted and due & payable Operational Debt, having not been paid amounting to a clear default. A copy of the Email dated 13.04.2019 sent by the Corporate Debtor to the Operational Creditor along with the self-attached Ledger Statement shared by the Corporate Debtor mentioning the heading to be Ledger from date: 01.04.2016 to Date: 31.03.2019, Generated By: (XP0019) Pankaj Kumar, On: 13.04.2019, along with the Emails dated 14.08.2019 sent by the Operational Creditor and the Reply vide Email dated 20.08.2019 sent by the Corporate debtor is hereby marked and annexed as Annexure A-6.

24.

The Corporate Debtor/ Respondent Company has failed and neglected to pay the said admitted sum of Rs. 10,44,718/-. An affidavit on behalf of the Operational Creditor/Applicant Company under the provisions of the Section 9(3)(b) of the Insolvency & Bankruptcy Code, 2016, to the effect that there is no notice given by the Corporate Debtor relating to a dispute of the unpaid Operational Debt is attached hereto and marked as Annexure A-9.

25.

In addition, Operational Creditor/Applicant is also attaching a copy of the Ledger Account Statements for the period between 01.04.2016 to 31.03.2019 maintained with respect to the Corporate Debtor. The copy of the Ledger Account Statements for the period between 01.04.2016 to 31.03.2019 maintained by the Operational creditor with respect to the Corporate Debtor is attached hereto and marked as Annexure A-10. Affidavit under Section 65B of the Evidence Act, 1872 on behalf of the Operational Creditor is hereby marked and annexed as Annexure A-11. A copy of the Working for Computation of default in a tabular form is hereby marked and annexed as Annexure A-12.

26.

Further, a copy of the Statement of Accounts maintained by the Applicant/ Operational Creditor with the Yes Bank, duly stamped by the Yes Bank from 01.10.2016 to 02.11.2019 confirming that there is no payment of the unpaid operational debt by the Corporate Debtor is hereby marked and annexed as Annexure A-13.

27.

That as stated herein above, the sums mentioned in the previous paragraphs of this Application are definite and are payable by the Respondent No. 1 Company/ Corporate Debtor Company to the Applicant.

28.

The Corporate Debtor Company is unable to pay its creditors. It is commercially insolvent and in unwilling to clear the self-admitted Operational Debts. In this premises it is just, fit and equitable that the Petition under the provisions of Section 9 of the Insolvency and Bankruptcy Code, 2016 be admitted by this Hon'ble Adjudicating Authority.

29.

This Application is made bona fide, in the interest of justice, and the balance of convenience is also in favour of passing the orders prayed for herein.

PRAYER

In the circumstances mentioned above, it is most respectfully prayed that this Hon'ble Tribunal may be pleased to pass the following orders:

1.

Admit the Instant Application/Petition.

2.

Pass an order initiating Corporate Insolvency Resolution Process against the Respondent No. 1 Company/ Corporate Debtor under the provisions of the Insolvency and Bankruptcy Code, 2016. 3. Pass an order/direction appointing an Interim Resolution Professional or any other person to take charge over the Respondent No. 1 Company/ Corporate Debtor Company assets, affairs, books of accounts and to conduct the affairs of the Respondent No. 1 Company/ Corporate Debtor Company. 4. Pass an order that pending the hearing and final disposal of Present Application/ Petition an Interim Resolution Professional or any other person be appointed as Interim Resolution Professional to take over the possession of the assets, properties affairs, books of accounts and to conduct the affairs of Respondent No. 1 Company/ Corporate Debtor company. 5. Pass an order awarding costs of the Present Application. And/ Or 6. Further orders may be passed and directions be given as this Hon'ble Adjudicating Authority may deem fit and proper. For NEO INDUSTRIES Karan Singh (Partner) M/s Neo Industries (Registered Office at: Plot No. 5, Street No. 3, Indira Complex, Kheri Road, Sector – 87, Neharpar Faridabad, Faridabad – 121002, Haryana) 2.Amount claimed to be in default and the date on which the default occurred (Attach the workings for computation of amount and dates of default in Tabular Form)Rs. 14,73,624/- (Rupees Fourteen Lacs Seventy Three Thousand Six Hundred and Twenty Four only) including the due & payable outstanding Operational Debt of Rs. 10,44,718/- (Rupees Ten Lacs Forty Four Thousand Seven Hundred and Eighteen Only) along with an Interest amount of Rs. 4,28,906/- (Rupees Four Lacs Twenty Eight Thousand Nine Hundred and Six Only) calculated @ 18% p.a. from the due date of each invoice till the realization of the amount, as clearly mentioned in each of the pending Invoices, till 18.10.2019 and thereon.

M.S. NAGAR & CO. Advocates & Solicitors

Mohinder Singh Nagar Advocate P-1545389 M.A. (B.A.) LL.B. High Court of Delhi & Chandigarh

Mohit Nagar Advocate D-2785/2011 LL.B. (L) and Registrar High Court & Supreme Court of India

Date: 05.11.19

To,

I. Dhruv Gupta, Advocate House No. 47 (G.F.), Sector – 16A, Faridabad – 121001.

II. Neo Industries Plot No. 5, Street No. 3, Indira Complex, Kheri Road, Sector – 87, Neherpar, Faridabad – 121002.

Subject: Reply to Demand Notice dated 18.10.2019 (Received on 26.10.2019) in Form 3 under Rule 5 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.

Our client M/s. Nikko Auto Limited, at Devika Tower 6, Nehru Place, New Delhi – 110019, have placed a Legal Notice served by you upon our clients before me and reply of the same is as under:-

It is submitted that your client has concealed the true and material facts and misguided you to send the present legal notice to our client, hence the contents of your legal notice are totally wrong, false, hence denied.

Para-wise Reply:

OFFICES:

Faridabad: Kheri No. 1-44, D.E. Sector-10, Faridabad-121005

Delhi: C-5, Lingpura 8, Mathura Road New Delhi-110014

Gurugram: Ch. No. A-27, Lawyers Chamber Distt. Courts, Gurugram

1.

That the contents of para No. 1 of your Demand Notice are wrong, false, incorrect and hence denied. However, it is further brought to your notice that there is no operational debt due from Nikko Auto Ltd. towards you, as claimed in your Demand Notice.

2.

That the contents of para No. 2 of your Demand Notice given in Tabular form are also false and frivolous and hence denied. Point wise reply to the same is as follows:

a)

That the contents of Point 1 of Table: PARTICULARS OF OPERATIONAL DEBT, are vehemently denied being vexatious, frivolous and devoid of merits. It is further denied that the Total amount of Rs. 14,73,624/- (Rupees Fourteen Lakh Seventy Three Thousand Six Hundred and Twenty Four Only) is due and payable on account of supply of metal nuts by the operational creditor being Neo Industries and it is further denied that the debt fell due on account of invoices as detailed by you in the said table. It is pertinent to bring to your kind notice that the liability towards the operational creditor is only to the extent of Rs. 10,44,718/- (Rs. Ten Lakh Forty Four Thousand Seven Hundred and Eighteen Only). It is also specifically denied that corporate debtor has to pay any interest as claimed by you in your demand notice.

Reply to Details of Transactions of account of which debt became due is as follows:

1.

That the contents of para No. 1 to 14 are denied in toto, save and except which are matter of fact.

2.

That it is also imperative to bring to your notice that your client has compromised the matter with our client and as per settled terms and conditions, our client has agreed to pay Rs. 10,44,718/- (Rupees Ten Lakh Forty Four Thousand Seven Hundred and Eighteen Only), in four equal instalments of Rs. 2,61,180/- (Rupees Two Lakh Sixty One Thousand One Hundred and Eighty Only) each, and your client is well aware of the same. The schedule as fixed for payment of the aforesaid amount is as follows:

i.

1st Installment- 25.11.19 to 30.11.19 = Rs. 2,61,180/- ii. 2nd Installment- 25.12.19 to 30.12.19 = Rs. 2,61,180/- iii. 3rd Installment- 25.01.19 to 30.01.19 = Rs. 2,61,180/- iv. 4th Installment- 25.02.19 to 30.02.19 = Rs. 2,61,180/-Total Amount Rs. 10,44,718/-

b)

That the contents of Point No. 2 of Table: PARTICULARS OF OPERATIONAL DEBT, are misconceived and devoid of merits, hence denied.

c)

That the contents of Point No. 3 of Table: PARTICULARS OF OPERATIONAL DEBT, are admitted.

d)

That the contents of Point No. 4 of Table: PARTICULARS OF OPERATIONAL DEBT, are also admitted.

e)

That the contents of Point No. 5 of the Table: PARTICULARS OF OPERATIONAL DEBT, are denied for want of knowledge.

f)

That the contents of Point No. 6 of the Table: PARTICULARS OF OPERATIONAL DEBT, are denied as there is no debt against the corporate debtor.

g)

That the contents of Point No. 7 are matter of record. However all the documents enclosed by the operational Creditor are denied, as there is no debt due or payable on the part of the corporate debtor, except to the extent specifically admitted by the corporate debtor.

3.

That it is imperative to bring to your kind notice that the aforesaid claim/demand raised by operational creditor is disputed one and cannot be taken to the adjudicating authority.

4.

That the contents of para No. 4 of Demand Notice are not applicable to corporate debtor as there is no liability on the part of the corporate debtor as claimed by the operational creditor, hence no question of repayment arises, except what has already been admitted by the corporate debtor and operational creditor in the aforesaid meeting.

5.

That in reply to para No. 5 corporate debtor calls upon operational creditor through this reply to be advised and to withdraw the Demand Notice dated 18.10.2019.

“(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.”

"Mr. Satish Joshi is directed to take charge of the CIRP of the Corporate Debtor with immediate effect. The Court Officer will inform the IRP so appointed by all modes."