M/s Silcotex Silicones Private Limited vs M/s. Cubatics Undustries Private Limited

Per: Shri H.V. Subba Rao, (Judicial Member)

This Company Petition is filed by M/s Silcotex Silicones Private Limited, (hereinafter called “Operational Creditor”) seeking to set in motion the Corporate Insolvency Resolution Process (CIRP) against Cubatics Industries Private Limited (hereinafter called “Corporate Debtor”) by invoking the provisions of Section 9 of Insolvency and Bankruptcy Code (hereinafter called the “Code”) read with Rule 6 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016.

The brief facts of the petition are stated herein below:

a. The present Petition arises out of the commercial transaction between the Operational Creditor and the Corporate Debtor.

b. The Operational Creditors engaged in the business of trading of textile auxiliaries. On the basis of verbal orders placed by Corporate Debtor for supply of Textiles auxiliaries, Operational Creditor complied its order by supplying the required quantity to the Corporate Debtor (hereinafter referred to as ‘Said Supply of Goods’ and raised various invoices. However, despite the invoices are duly received and acknowledged by the Corporate Debtor, the Corporate Debtor has not paid only a meagre amount of Rs. 36,40,866.66/- (Rupees Thirty Six Lakhs Forty Thousand and Eight Hundred and Sixty Six and Sixty Six paise Only) and failed, neglected and omitted to pay the dues of Rs. 36,40,866.66 (Rupees Thirty Six Lakhs Forty Thousand and Eight Hundred and Sixty Six and Sixty Six paise Only). Following are the details of outstanding invoices:

c. The Corporate Debtor is liable to make payment of the debt amount of Rs. 36,40,866.66/- (Rupees Thirty Six Lakhs Forty Thousand and Eight Hundred and Sixty Six and Sixty Six paise Only) along with interest at the rate of 24% p.a. from the date of default i.e. due date of each invoice till the date of actual payment.

d. Therefore, the Operational Creditor is entitled to interest of Rs. 3,46,479.08/- (Rupees Three Lakhs Forth Six Thousand and Four Hundred and Seventy Nine and Eight paise Only) up to 24^th August 2019 and further interest up to the date of actual payment @ 24% p.a. The total amount claimed to be in default comes to Rs. 39,87,345.74/-(Rupees Thirty Nine Lakh Eighty Seven thousand Three hundred Forty Five and seventy Four paise Only) upto the date of this application.

e. The Corporate Debtor has failed to make any payment till date towards the aforesaid invoices. Various messages were exchanged between the parties for the payment of outstanding dues.

f. The Operational Creditor has issued Demand Notice dated 24^th August, 2019 in Form 3 and Form 4 under Rule 5 of the Insolvency and Bankruptcy Code 2016 calling upon the Corporate Debtor to clear the outstanding dues.

g. The Demand Notice in Form 3 and 4 was issued by Operational Creditor on 29^th August, 2019. However, even after the receipt of the Demand Notice, the Corporate Debtor has not made any payment towards the amount in default till the date of this application and the entire outstanding amount is due and payable by the Corporate Debtor to the Operational Creditor.

h. However, to the shock and surprise of the Operational Creditor, the Corporate Debtor through its Advocate has issued Legal Notice dated 03^rd October on the Operational Creditor making false, frivolous and baseless allegation against the Operational Creditor. Hence, the present petition under Section 9 of the Insolvency and Bankruptcy Code, 2016.

Since the Corporate Debtor has failed to appear before this bench despite service of notice, the Corporate Debtor was set ex-parte by this bench vide order dated 20.10.2021.

Heard the counsel appearing for the Operational Creditor and perused the record. The counsel appearing for the Operational Creditor invited the attention of this bench to the relevant invoices, Demand Notice and track report of service of Demand Notice on the corporate debtor along with other relevant documents which are annexed to the company petition and successfully demonstrated the existence of debt and default. Since the corporate debtor remained ex-parte, the claim of the Operational Creditor remained un challenged. To add this the subject matter of the invoices relates to 2018 and the company petition being filed on 17.01.2020 is well within limitation. The petitioner has also suggested the name of proposed Interim Resolution Professional in part-3 of the Petition along with his consent letter in Form-2.

After hearing the counsel appearing for the Operational Creditor and upon perusing the material available on record this bench is satisfied that the above company petition fulfills all the necessary requirements for admission Under Section 9 of the Code and is liable to be admitted.

Accordingly, the above company petition admitted by passing the following:

Accordingly, this Petition is allowed.

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