M/s. PMC YM-Pharma Private Limited vs M/s. Kevin Ventures LLP

Per: Charanjeet Singh Gulati, Member (Technical)

The above Company Petition is filed by M/s. PMC YM-Pharma Private Limited (hereinafter called as ‘Operational Creditor’/‘OC’) seeking to initiate of Corporate Insolvency Resolution Process (CIRP) against M/s. Kevin Ventures LLP (hereinafter called as ‘Corporate Debtor’/‘CD’) by invoking the provisions of Section 9 of Insolvency and Bankruptcy Code, 2016 (hereinafter called as “Code”) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudication Authority) Rules, 2016 for a Resolution of total Operational Debt of Rs. 3,84,61,125/- (Total Principal amount: Rs. 2,73,09,675/- and Interest: Rs. 1,11,51,450/-).

The brief facts of the petition are as under:

(i). That M/S. PMC YM-PHARMA PRIVATE LIMITED is a company registered on the file of Registrar of Companies, West Bengal, Calcutta on 10.11.2016 and the CIN No. U24290WB2016FTC218270. It is a subsidiary of a Foreign company. The Registered office of the Operational Creditor is situated at #103, G.T. Road, West Rishra Kolkata, Hoogly, West Bengal-712248IN.

(ii). The company is into manufacturing of other Chemical Products, intermediates of pharmaceutical bulk drugs. The main objects of the company are set out in the MOA of the Company viz., to carry on the business as manufacturers of and dealers in pharmaceuticals, reagents, diagnostic products, enzymes, medical, herbal bacteriological. biological, chemical and other preparations, articles and compounds and as chemists and druggists generally, etc... The Company is having its working unit/factory/Operations at Sy.No.506 & 507. D. Nagaram Village, Koyyalagudem (GP), Choutuppal (Mandal), Yadadri Bhongir District, Telangana-508252. The company's GSTIN/UIN No. 36AAICP8656N1ZJ.

(iii). M/S. KEVIN VENTURES LLP/Corporate Debtor is registered as Limited Liability Partnership firm with Registrar of Companies, Ministry of Corporate Affairs, Mumbai on 07.10.2015. The LLP Identification No. is AAE-8716. The main objects of the Corporate Debtor are set out in the Incorporation Documents filed with ROC, Mumbai, Maharashtra viz., LLP Deed, LLP forms. The main Business activities carried out by the Corporate Debtor on incorporation are Wholesale trade and commission trade, except of motor vehicles and motorcycles.

(iv). The CD purchased goods (FQ-Acid chemical component) from OC, against nine purchase Orders. The OC delivered the goods/FQ-Acid chemical components, raised E-Way bills, paid GST to the Government on the account of CD and raised Invoices on CD. The CD took delivery of the goods/chemical components without any demur or dispute. The CD also paid a sum of Rs.68,18,925/-during 01.04.2017 to 31.03.2018 and Rs.33,06,900/- during 01.04.2018 to 31.01.2022, a total Rs.1,01,25,825/- against total Invoices amount of Rs.3,74,35,500/- (Out of Nine Invoices the CD paid three invoices amount and still six Invoices amount to be paid). An amount of Rs.2,73,09,675/- towards principal and plus @14% interest i.e., Rs.1,11,51,450/- with effect from last date of payment i.e.. 18.03.2019 to 18.02.2022 remains outstanding. The total outstanding of Rs.3,84,61,125/- is payable to the OC by CD.

(v). The OC also issued Form No.3 & 4 notices under IBC on 20.01.2021 demanding to pay the outstanding amount of Rs.2,73,09,675/- with upto date interest. Though the CD acknowledged the notice but neither paid the outstanding amount nor raised any pre-existing dispute.

(vi). The CD also confirmed the outstanding Debt of Rs.2,73,09,675/-and statement of Accounts as at 31.05.2018 and 15.10.2019 sent by the OC vide Emails dated 09.06.2018 and 15.10.2019.

(vii). In these circumstances, the OC submits that the Corporate Debtor is liable to pay to the Operational Creditor a total sum of Rs.3,84,61,125/- (Rs.2,73,09,675/- towards principal and Rs.1,11,51,450/- towards Interest). Therefore, there is debt payable by Corporate Debtor which Corporate Debtor has defaulted to pay, and no pre-existing disputes are raised. Hence this is a fit case for admitting Corporate Debtor into CIRP.

The Corporate Debtor filed detailed reply opposing the admission of the above Company Petition on following grounds:

(i). The Corporate Debtor denies the claim of the Operational Creditor and submits that it is wrong to say that default in repaying the debt has occurred. The Corporate Debtor further submits that in fact there was no debt which was due and payable by the Corporate Debtor. The Operational Creditor had an arrangement in terms of which the alleged invoices were drawn without actually executing the trade transaction and/or movement of the goods covered under the invoices. The Corporate Debtor further submits that the present petition is filed on account of certain disputes between the Corporate Debtor and Operational Creditor and the jurisdiction of this Hon'ble Tribunal has been invoked erroneously and wrongly.

(ii). The present company petition is not maintainable as this Tribunal has no jurisdiction to entertain and hear the present petition, as the operational creditor is a company registered on the file of the Registrar of Companies in the State of West Bengal and a subsidiary of Foreign Company.

(iii). Further and without prejudice to what is stated above, the Corporate Debtor submits that the tax invoices issued and annexed to the present petition specifically state that all the disputes arising out of the transactions are subject to Hyderabad Jurisdiction only. The Corporate Debtor, therefore, submits that for this reason too this Tribunal has no jurisdiction to hear and adjudicate the present petition.

(iv). The Corporate Debtor further submits that the Operational Creditor has relied on various emails and computer-generated documents. These documents cannot be relied and admitted as these are not supported by certificate as required under Section 65B of Evidence Act and Information Technology Act 2000.

(v). The Corporate Debtor further submits that it is wrong to say that nine purchase orders were placed by the Corporate Debtor with the Operational Creditor. The Corporate Debtor further submits only three orders were placed, details of which are mentioned below:

Further the record reveals that the Operational Creditor did not supply the material as per the purchase orders nor packaged the same in a proper manner resulting into loss to the Corporate Debtor. Despite repeated complaints, the Operational Creditor did not act to resolve the disputes lodged by the Corporate Debtor.

(vi). The Corporate Debtor also submits that the claim of the Operational Creditor for payment of principal debt amounting to Rs.2,73,09,675.00 (Rupees two crore seventy three lacs nine thousand six hundred seventy five only) along with @ 14% per annum from 18th March, 2019 till actual repayment is not admitted by the Corporate Debtor as the Operational Creditor has wrongly claimed interest @14% per annum without any contractual obligations. The Corporate Debtor had never agreed to pay for interest @14% per annum as is claimed in the present petition. Moreover the claim by the Operational Creditor is against public policy of levying and claiming interest rate in violation of bank rate. Thus the claim of the Operational Creditor is totally illegal and unlawful.

(vii). The Corporate Debtor further submits that despite there being alleged outstanding of the debt and default thereof, the Corporate Creditor has failed to file the details of the debt and default thereof before National E- Service Limited information utility. Also the Corporate Debtor has neither authenticated nor verified on the portal of NeSL about the said debt or default thereof. On the contrary the Corporate Creditor in its demand notice has confirmed that no record of a dispute is raised in relation to relevant debt and default thereof.

(viii).The Corporate Debtor also submits that as the Corporate Creditor has failed to file the information with NeSL with regard to the dispute, hence the question of authenticating and verifying the said information does not arise.

(ix). The Corporate Debtor further submits that the corporate debtor had informed the operational creditor that packing of key intermediate of an API was not done properly which had resulted into damage to the material. The operational creditor was guilty of despatching the material in an unethical manner resulting into huge damage to the material on account of quality of the material being spoiled by the dust. Thus, despatching of material in unethical manner confirms that the corporate creditor did not supply with the material to the corporate debtor as per the agreement.

(x). The corporate debtor further submits that despite lodging various complaints over telephone as well as in person, the operational creditor did not act in the matter by supplying the material which was not properly packaged but issued various invoices claiming various sums from the corporate debtor.

(xi). The Corporate Debtor submits that the Corporate Creditor instead of resolving the complaints of the Corporate Debtor raised various tax invoices which are not admitted by the Corporate Debtor.

(xii). The Corporate Debtor further submits that there has not been strict compliance of Section 8 of IBC Code as the demand notice is issued by the Operational Creditor through its Advocate was illegal as interest was claimed in violation of the extant laws. The said notice has been issued by the advocate of the operational creditor which in the submission of the Corporate Debtor is not strict and correct compliance of Section 8 of IBC Code. As such the notice given through the advocate of the operational creditor is non-est.

(xiii). The Corporate Debtor further submits the other demand notices allegedly issued by the Operational Creditor are also illegal and unlawful in view of claim of interest in violation of contractual terms as well as against the public policy of claiming excessive interest.

(xiv). The Corporate Debtor further submits that all the invoices annexed with present petition seem to be fake and bogus. The Corporate Debtor submits that all these invoices are not appearing on GST (Goods and Services Tax) site confirming that Operational Creditor has not paid any GST. Thus non-payment of GST on one hand proves that the Operational Creditor is defaulter of statutory dues payable to the Government and on the other hand such non-payment of GST by the Operational Creditor will have adverse impact on the Corporate Debtor. The Corporate Debtor will not be in a position to take input credit for GST.

(xv). The Corporate Debtor also submits that sending of any purchase order via email or other communication requires to be confirmed by a separate and independent signed copy of the communication. The Corporate Debtor further submits that the purchase orders and other communications sent through only emails cannot be relied and made basis to entertain and admit the present petition. Such emails are required to be confirmed by written and signed communications between the parties. The claim of the Operational Creditors is not admitted by the Corporate Debtors.

(xvi). The Corporate Debtor further submits that the purchase Orders placed have not been completed in time and executed satisfactorily. This has resulted into huge losses to the Corporate Debtor as the Corporate Debtor was forced to commit defaults with its customers. The Corporate Debtor submits that despite repeated complaints, the Operational Creditor failed to attend to these complaints and has wrongly and falsely initiated this petition against the Corporate Debtor.

(xvii). Further the present Application is not maintainable on the ground that this application does not fall within the ambit of the definition of 'operational debt’ and therefore the claim of the Applicant cannot be construed as an ‘operational creditor' and on that ground that the operational creditor has not completed and executed the purchase orders as per terms and conditions agreed by the parties. Hence the present Application is untenable in law as the Operational Creditor has failed to satisfy the definition of 'debt' as well as 'operational creditor'.

(xviii). The opening words of the definition clause would indicate that a debt is a debt which is due and payable on account of supply of goods in timely manner as per agreed terms of the contract between the parties. If delayed and unsatisfactory execution of purchase orders is done the no debt becomes due and payable. Further the Operational Creditor has failed to ensure the terms of the contract and hence the claim of operational creditor is not valid and legal. In view of failure to satisfy the essential requirements as envisaged under the provisions of IBC 2016, this application is not maintainable.

(xix).The Corporate Debtor submits that before filing of this petition there existed a dispute between the Corporate Debtor and Operational Creditor.

(xx). The Corporate Debtor further humbly submits that in order to exert pressure and recover money which is not due and payable from the Corporate Debtor, the Operational Creditor has filed the present application. The Corporate Debtor further submits that the Operational Creditor has thus wrongly concluded that the Corporate Debtor has committed the default in making the payment of the outstanding bills/invoices

(xxi).In view of the aforesaid factual backdrop, the Corporate Debtor therefore submits that the claim of the Operational Creditor is without any merits and not based upon documentary evidence and therefore this Tribunal be pleased to dismiss this application with cost in the interest of justice.

The facts of the case, averments, submissions, documents mentioned in the petition, additional affidavit and the reply of the Corporate Debtor have been perused and considered. Further, oral arguments of the Ld. Counsel for the Operational Creditor and Ld. Counsel for the Corporate Debtor have also been carefully considered.

In Part-IV of the petition, the total principal amount of debt is mentioned at Rs. 2,73,09,675/- as on 18.03.2019 + Interest of Rs. 1,11,51,450/-@14% p.a. with effect from 18.03.2019 to 18.02.2022. The details of the transaction on account of which debt has fallen due has also been mentioned therein. As regards date on which debt fell due, it has been mentioned that the same gets confirmed from the respective date of each invoice which has been raised upon the Corporate Debtor. It has also been stated that the Corporate Debtor has confirmed the outstanding amount of Rs. 2,73,09,675/- on various dates including the confirmation of ledger balance as on 31.05.2018 (Statement of Account for the period 01.04.2017 to 31.05.2018) vide email dated 09.06.2018 and confirmation of ledger balance in the statement of account for the period from 01.04.2018 to 31.03.2019 which was attached to the email dated 15.10.2019 of the Corporate Debtor.

Notice of Demand as per Section 8 of the IBC in Form-3 is enclosed as Annexure A to the petition which was issued on 18.02.2022 by the Operational Creditor and Operational Creditor has also issued Form-4 dated 18.02.2022 enclosing therewith invoices of demand payment. The same was issued through the Indian Post and the same has been delivered to the Corporate Debtor on 24.02.2022. The concerned proof in the shape of track consignment report has been attached to the petition.

The copies of the tax invoice which have been attached with the petition from Page Nos. 30 to 60 are extracted hereunder:

It is seen from the copies of the invoices attached with the petition that there are no due dates for payments mentioned therein. However, terms of payments are seen to be mentioned in the Purchase Order placed by the Corporate Debtor which is either in ‘Advance’ or ‘60 days’. But for one Purchase Order dated 21.12.2017 where the payment terms are mentioned as ‘Advance’, all the payments as per the Purchase Order are to be made within 60 days. Further, either in the purchase order or in the invoices, there is no stipulation seen towards the payment of interest towards delayed payment.

At Page No. 65 of the petition, a confirmation of accounts for the period 01.04.2017 to 31.05.2018 is attached which is duly signed by the Operational Creditor and there is a signature of one Mr. Rajeev Shah with the Rubber Stamp of the Corporate Debtor. At Page No. 69 of the petition there is again a confirmation of accounts which is dated 15.10.2019 and is for the period 01.04.2018 to 31.03.2019 wherein the closing balance payable to the Operational Creditor is acknowledged at Rs. 2,73,09,675/-which is signed by the Authorized Signatory of the Corporate Debtor.

Under the facts and circumstances as above, it is clear that there is a debt exceeding Rs. 1,00,00,000/- which had become due and has not been paid. Therefore, the threshold limit as provided in Section 4 of the Code is exceeded and default on payment also has taken place.

The Ld. Counsel for the Corporate Debtor drew our attention to the Page No. 15 of their submission which is a letter obtained from Dhanlaxmi Warehousing Company wherein it has been mentioned that, on the dates of invoice raised by the Operational Creditor, no material was received by them. In this regard, it is noted that the dates mentioned therein are the dates of invoices and not the dates of delivery. Further thereto this is a third-party document obtained by Corporate Debtor. It is further mentioned that the Operational Creditor in this case has placed on record the concerned E-Way bills which authenticates dispatch of material. To evidence that Corporate Debtor has availed the I.T.C. of IGST on the supply of material, the Operational Creditor has produced the printouts taken from the website of GST Department. This is clear admission on the part of Corporate Debtor of receipt of material. Under these facts and circumstances, the contention of the Corporate Debtor that no goods were received by them is not found to be acceptable.

The Corporate Debtor has stated in the reply that this Tribunal has no jurisdiction over the case as it would either be at the place where the Operational Creditor is registered or as mentioned in the invoice that the dispute arising out of transaction would be subject to Hyderabad jurisdiction. However, during the course of the hearing no such objection was taken by the Ld. Counsel for the Corporate Debtor and it is further mentioned that since the registered office of the Corporate Debtor falls within the jurisdiction of this Bench, the petition under consideration can validly be decided by this Bench.

Ld. Counsel for the Corporate Debtor also submitted that the Operational Creditor has relied upon various emails and computer-generated documents and without recourse to the Section 65B of the Evidence Act and Information Technology Act, 2000 and therefore, they were not admissible. In this regard, it is stated that the invoices, E Way bills, L.R.’s are the attested photocopies of the documents and the balance confirmation documents which are signed by the Authorised Signatory of Corporate Debtor are the ones which were received by mail by the Operational Creditor. In such balance confirmation letter, the fact is relating to the credit and debit, both have been mentioned and the debit amounts have nowhere been denied by the Ld. Counsel for the Corporate Debtor. Therefore, there cannot be any case of unreliability of these documents. Accordingly, the submission of the Ld. Counsel for the Corporate Debtor is found to be devoid of any merits.

The Ld. Counsel for the Corporate Debtor has also contended that, they have never agreed for the payment of interest @14%. Be that as it may, the principal amount of debt outstanding and payable is at Rs. 2,73,09,675/- which is beyond the threshold limit of Rs. 1,00,00,000/-for initiation of CIRP, as provided in Section 4 of the Code.

The Ld. Counsel for the Corporate Debtor, during the course of hearing objected to the signatory of Page No. 65 which is Confirmation of Accounts by one Mr. Rajeev Shah contending that this is not the signature of any of the designated partners of the Corporate Debtor or the authorised signatory of the Corporate Debtor. In this regard it is noticed that the Additional Affidavit filed by the Corporate Debtor before this Bench on 22.11.2022 is signed by the same Mr. Rajeev Shah with the same seal of the Corporate Debtor as authorised signatory on every page including as deponent. Therefore, such contention of the Ld. Counsel for the Corporate Debtor is found to be misleading and away from the facts.

The Ld. Counsel for the Corporate Debtor has also submitted that they have lodged various complaints over telephones as well as in person. No such argument was taken during the course of hearing and further no documents relating to any pre-existing dispute have been placed on record.

The Ld. Counsel for the Corporate Debtor has also mentioned that the Demand Notice was not issued in a strict compliance of Section 8 of the IBC, as the notice was given by the Advocate of the Operational Creditor and interest was also charged without there being any stipulation for the same. It is a well settled law that Section 8 notice can be issued by the Advocate of the Operational Creditor and as such there is no invalidity because of this reason.

The Ld. Counsel for the Corporate Debtor further submitted that the invoices annexed with the present petition seem to be fake and bogus. Such submission of the Ld. Counsel for the Corporate Debtor is found to be devoid of merits especially when the Corporate Debtor has itself availed the input tax credit of IGST mentioned in the entries and has also signed the confirmation of statement of accounts through its authorised signatory.

The Ld. Counsel for the Corporate Debtor also submitted that the Operational Creditor has not completed the purchase order and executed them satisfactorily. There is nothing in the petition which could have substantiated and demonstrated any pre-existing dispute.

The Ld. Counsel for the Corporate Debtor also submits that the application does not fall within the ambit of the definition of Operational Debt and therefore the petition is not maintainable. For ready reference definitions given in Section 5(20) & Section 5(21) are reproduced hereinunder:

There are facts demonstrated and available in the petition that suggests the purchase order have been placed by the Corporate Debtor, goods have been supplied by the Petitioner, invoices have been raised by the Petitioner, part payment have been made by the Corporate Debtor and there is confirmation of balance in the shape of the statement of accounts duly acknowledged and signed by the authorised signatory of the Corporate Debtor. Further, there is evidence to prove the supply of material by the Applicant to Corporate Debtor and Corporate Debtor having availed ITC of GST on the goods received by it. Under these facts and circumstances the Applicant is clearly covered under the definition of the Operational Creditor as provided in Section 5(20) of the Code. Further thereto the consequent debt arisen would clearly fall under the definition given in Section 5(21) of the Code. Therefore, the Applicant in this case is clearly an Operational Creditor within the meaning of Section 5(20) and the debt arisen in respect of goods supplied by him to the Corporate Debtor falls under the definition of Operational Debt under Section 5(21) of the Code. Accordingly, the contention that the debts are not operational, and the petition is not maintainable is found to be devoid of merits.

In view of the facts and circumstances of the case and discussion hereinabove, the petition bearing no. C.P.(IB)-386(MB)/2022 filed before this Tribunal on 08.04.2022 is found to be admissible and accordingly the same is admitted by passing the following order:

a. The above Company Petition No. (IB) 386 (MB)/2022 is hereby allowed and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against M/s. Kevin Ventures LLP.

b. Since the Operational Creditor has not suggested the name of IRP to perform the duties of the Interim Resolution Professional (IRP) in the petition, this Bench is appointing the IRP from the list furnished by the Insolvency and Bankruptcy Board of India (IBBI). This Bench hereby appoints Mr. Rakesh Kumar Relan (rakeshkrelan@gmail.com), Insolvency Professional, Registration No: IBBI/IPA-001/IP-P02009/2020-2021/13119 as the interim resolution professional to carry out the functions as mentioned under the Insolvency & Bankruptcy Code, 2016.

c. The Operational Creditor shall deposit an amount of Rs.5 Lakhs towards the initial CIRP costs by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. The IRP shall spend the above amount only towards expenses and not towards his fee till his fee is decided by COC.

d. That this Bench hereby prohibits 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; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor.

e. That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period.

f. That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.

g. That the order of moratorium shall have effect from the date of pronouncement of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, as the case may be.

h. That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of the Code.

j. Registry shall send a copy of this order to the Registrar of Companies, Mumbai, for updating the Master Data of the Corporate Debtor.

k. Accordingly, this Petition is admitted.

l. The Registry is hereby directed to communicate this order to both the parties and to IRP immediately.