M/s Shri Ked Insulations Pvt. Ltd vs M/s Energie Elecinfra Pvt. Ltd

The case is fixed for pronouncement of order. The common order is pronounced in the open court, vide separate sheet.

The present Petition is filed on 12.02.2025 by M/s. Shri Ked Insulations Pvt. Ltd., through its Authorized Representative Shri Manoj Kedia (hereinafter referred to as 'Operational Creditor') against M/s. Energie Elecinfra Pvt. Ltd. (hereinafter referred to as 'Corporate Debtor') under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "IBC, 2016") read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as "IB (AAA) Rules, 2016") for initiation of Corporate Insolvency Resolution Process (CIRP), to appoint an Interim Resolution Professional (hereinafter referred to as "IRP") and declare a moratorium for default in payment of an operational debt of Rs.2,71,38,664/- including interest.

Perusal of Part-II of Form-5 reveals that the Corporate Debtor, M/s Energie Elecinfra Pvt. Ltd. (formerly M/s Danke Technoelector Pvt Ltd), has a CIN of U31900GJ2009PTC058250. The Corporate Debtor was incorporated on 07.10.2009 under the Companies Act, 1956, with its registered office at Plot No. 244/8, GIDC Estate, Waghodia-391760, Distt. Baroda (Vadodara), Gujarat.

Perusal of Part-III of Form-5 reveals that the Operational Creditor has proposed M/s Efficax Resolutions Private Limited (Corporate IP), IPE registered with IBBI, to act as the Interim Resolution Professional in the matter.

Perusal of Part-IV of Form-5 reveals that the total operational debt claimed by the Operational Creditor is Rs.2,71,38,664/- for invoices raised between 10.02.2021 and 28.05.2021. The Operational Creditor has not expressly specified the date of default in Part-IV of Form-5 or in the demand notice issued under Section 8 of IBC, 2016. However, the Operational Creditor has stated that the debt fell due 30 days after the date of the invoices, calculated as per the payment terms.

The Operational Creditor has presented the following facts in the Petition: -

The Operational Creditor raised invoices between 10.02.2021 and 28.05.2021 for supplies, aggregating to Rs.1,71,00,986/-. A schedule of invoices is annexed as Annexure-H. The Corporate Debtor accepted the goods and invoices without objection. Copies of 13 invoices with corresponding e-way bills are annexed as Annexure-I.

The Corporate Debtor replied on 06.02.2023, raising objections. Copy is annexed as Annexure-M.

The last invoice was raised on 28.05.2021, and the Corporate Debtor acknowledged dues on 10.05.2022. The petition is within limitation, considering the Supreme Court's order in Misc. Application No. 665 of 2021, excluding the period from 15.03.2020 to 28.02.2022 for limitation computation.

No payment has been received, necessitating the present application under Section 9 of IBC, 2016.

The Operational Creditor submits that the Corporate Debtor defaulted on the operational debt of Rs.2,71,38,664/-, justifying the initiation of CIRP.

Pursuant to the notice issued by this Adjudicating Authority, the Corporate Debtor filed its reply on 21.04.2025, vide inward diary No. D-2583, inter alia, stating therein:

A rejoinder was filed by the Operational Creditor on 17.06.2025, vide inward diary No. D-3829, stating:

Vide order dated 17.06.2025, this Adjudicating Authority directed both parties to file written submissions with citations. The Operational Creditor filed submissions on 25.07.2025, vide inward diary No. D-5013, stating:

The Corporate Debtor also filed written submissions on 28.07.2025, vide inward diary No. D-5072, inter alia, stating therein:

We have heard the arguments of Ld. Counsel for the Applicant/Operational Creditor as well as Ld. Counsel for the Respondent/Corporate Debtor and perused the material available on record.

During the final oral arguments heard on 09.09.2025, the learned counsel for the Corporate Debtor raised the issue that the date of default is neither expressly mentioned in Part-IV of Form-5 nor in the Demand Notice dated 30.07.2024, rendering the petition defective under the IB (AAA) Rules, 2016 and warranting dismissal. The learned counsel for the Operational Creditor rebutted that the mere non-mention of an express date of default in Part-IV of Form-5 or in the Demand Notice does not make the petition defective, as the debt fell due 30 days after the invoices, and the due dates are ascertainable from the unpaid invoices and supporting documents.

The Operational Creditor is a company under the Companies Act, 2013, manufacturing aluminium wires. The Corporate Debtor, incorporated under the Companies Act, 1956, operates in the energy sector. Supplies began in 2015, with a running account. Goods were accepted without objection. Invoices from 10.02.2021 to 28.05.2021 total Rs.1,71,00,986/-. Acknowledgment on 10.05.2022 confirms Rs.1,27,57,304.54 due. Ledger and balance sheet reflect outstanding debt. Demand notice dated 30.07.2024 claims Rs.2,71,38,664/-. No payment received.

The Corporate Debtor disputes service, cites Section 10A, claims LC payments, invokes res judicata, and questions NeSL filing and threshold.

The Operational Creditor counters that goods were consumed without dispute, service was proper, non-10A debt exceeds Rs.1 crore, LC claims lack evidence, and no res judicata applies.

The primary issues for determination and considerations are (a) whether the absence of an express date of default in Form-5 and the demand notice renders the petition defective; (b) whether the demand notice under Section 8 was properly served; (c) whether the petition is maintainable despite Section 10A; (d) whether a pre-existing dispute exists; (e) whether the debt meets the threshold under Section 4; (f) whether the petition is within limitation.

On the absence of an express date of default: Form-5 and the Demand Notice dated 30.07.2024 do not explicitly state the date of default. Rule 6 of IB (AAA) Rules, 2016 mandates Form-5 for Section 9 petitions, requiring the date of default in Part IV, Serial No. 2. Form-3 for Demand Notice requires the date from which the debt fell due.

In Kodeboyina Srinivas Krishna Vs. PVM Innvensys Pvt. Ltd., (2020) ibclaw.in 92 NCLAT, NCLAT held that the demand notice in Form 3 requires the date of default to be explicitly mentioned, so that on the basis of documents, the debt amount and date of default could be ascertained. Similarly, mentioning the date of default in Form-5 is a statutory requirement as per various rulings on 'Date of Default' being mandatory in Form No.5.

In Winntus Scaffolding Pvt. Ltd. Vs. Aishwarya Business Corporation Pvt. Ltd. (2023) ibclaw.in 147 NCLT, NCLT Kochi dismissed the petition for not mentioning the date of default, holding it mandatory. In LBF Publication Pvt. Ltd. vs. A & A Business Consulting Pvt. Ltd. (2023) ibclaw.in 517 NCLT, NCLT Mumbai rejected the petition as the absence made ascertaining default impossible.

However, the Operational Creditor argues that the dates are ascertainable from invoices (30 days after), but the explicit mention is mandatory under the rules and forms. The omission is a material defect, rendering the petition not maintainable.

Since the petition as well as the Demand Notice suffers from this fatal defect, it is not necessary to examine the other contentions in detail.

Accordingly, the petition being CP (IB) No. 91/9/AHM/2025 is dismissed with liberty to file a fresh petition after curing the defects subject to limitation as per law.

A certified copy of this order may be issued, if applied for, upon compliance with all requisite formalities.