Mr. Mahavir Nimodia alias Mahavir Prasad Nimodia vs Nahorjan Tea Company Private Limited

Per Rohit Kapoor, Member (Judicial)

The Court convened viahybrid mode.

This is a Company Petition filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (‘the Code’) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Mr. Mahavir Nimodia, sole proprietor of Chemico House(‘Operational Creditor’)for initiation of Corporate Insolvency Resolution Process (‘CIRP’) against Nahorjan Tea Company Private Limited (‘Corporate Debtor’).

The present Petition was filed on 31 December, 2021before this Adjudicating Authority. The total amount claimed in default is Rs.1,46,17,598/- (Rupees One Crore Forty Six Lakh Seventeen Thousand Five Hundred Ninety Eight only) as on 16 September, 2021, along with interest @14% per annum. The date of default is stated to be as on 13 July, 2021, the date on which last supply was made on.

In part II of the Petition the authorized share capital of the Corporate Debtor is Rs. 4,50,00,000/- (Rupees FourCrore Fifty Lakh only) with subscribed share capital of Rs. 4,32,00,000/- (Rupees Four Crore Thirty Two Lakhonly). Part – IV of the Petition deals with the particulars of the Operational Debt.

Submissions by the Ld. Counsel appearing on behalf of the Operational Creditor.

The Operational Creditor is engaged in the business of supplying agrochemicals, pesticides, insecticides and bio-fertilizers.The Corporate Debtor is in the business of Tea manufacturing. On several occasions the Corporate Debtor approached the Operational Creditor for supply of agrochemicals by placing various purchase orders upon the Operational Creditor.

In pursuance of the aforesaid purchase orders/ requests goods were supplied to the Corporate Debtor through a transporter, at the address as specified in the Purchase orders or at times to be collected by the staff of tea estate. Accordingly on the specific communication of the Corporate Debtor the staff from the Tea Estate viz. Mr. Tarabir, Mr. Mahesh, Mr. Krishna, Mr. Funtoosh and/or Mr. Dinu collected the materials from the Operational Creditor.

After each of the delivery, a tax-invoice was raised, which was received by the Corporate Debtor at its office, in Kolkata. The receipt of the invoice would be evident from the challans, as maintained by the Operational Creditor (Annexure – B).Against the supplies made by the Operational Creditor, the Corporate Debtor used to make on account payment as such making the account of the Corporate Debtor a running and continuous one.

However, despite several repeated requests made by the Operational Creditor, the Corporate Debtor has deliberately and negligently failed to make any payments whatsoever towards the outstanding tax- invoices raised.The date of the first default is the date of the last supplies made which was on July 13, 2021, while the last on account payment made against the supplies was on September 16, 2021 for a sum of Rs.20,000/ - (Rupees TwentyThousand only).

In 2019 the Ledger of the Corporate Debtor as maintained by the Operational Creditor was certified by the Corporate Debtor by affixing its stamp and signature thereupon. Therefore, confirming the unpaid liability of the Corporate Debtor. (Annexure – E). The Corporate Debtor had issued two cheques against part payment of its liability being Cheque no. 800056 dated August 25, 2021 for a sum of Rs.92,500/-(Rupees NinetyTwoThousand Five Hundred only) and Cheque no. 800057 dated August 26, 2021 for a sum of Rs. 48,000/- (RupeesForty Eight Thousand only) but both the chequeswere dishonored onpresentation.

The Operational Creditor regularly sought for payments of the outstanding over Telephone, electronic mailsand communications through WhatsApp, Although, none of the electronic mails were replied to by the Corporate Debtor but overtelephone the Directors of the Corporate Debtor used to always assure that payments will be released shortly and by their WhatsApp correspondences of October 6, 2021, wherein Mr. Jayant Singhania, being one of the Directors of the Corporate Debtor assured the Operational Creditor that they will talk after the Durga Puja holidays and reconcile account statement. However, no such meeting was held inspite of several follow ups(Annexure – G).

Since there were no payments being made by the Corporate Debtor after September 16, 2021, the Operational Creditor a notice under the Insolvency and Bankruptcy Code on November 1, 2021. The said Notice was received by the Corporate Debtor on November 16, 2021 and the same was replied to by a letter dated December 3, 2021 wherein, the Corporate Debtor admitted that they have not paid theamount as they are facing financial problems. They further stated that they would sit for a discussion after January 20, 2022 for making a payment schedule(Annexure – I)

Since past two years the Corporate Debtor has evaded the payment of the outstanding dues by seeking three weeks' /a month's time for a meeting to work out a repayment schedule, But the same was materialized due to the acts and conduct of the Corporate Debtor. This is a dilatory tactic used by the Corporate Debtor.

Is there any default by the Corporate Debtor?

Is the same is being acknowledged by the Corporate Debtor within the limitation period?

We have heard the Ld. Counsel appearing on behalf of the Operational Creditor and perused the record.

Notice was issued to the Corporate Debtor on 25 January, 2022. As per the track report, the notice was served upon the Corporate Debtor on 04 April, 2022, however, the Corporate Debtor choose not to appear before this Adjudicating Authority.

The matter was listed for arguments on 18 July, 2022, where we deemed fit proper to direct the Operational Creditor to serve a notice for appearance to the Corporate Debtor, through publication in two newspaper one in English ‘Business Standard’ and one in Bengali ‘Aajkal’ for their appearances before this Adjudicating Authority.

Accordingly, service affidavit was filed by the Operational Creditor. The matter was set ex – parte on 23 August, 2022. Vide order dated 26 September, 2022, the matter was reserved for final Arguments and on 04 November, 2022, the matter was reserved for orders.

On perusal of the letter date 03 December, 2021 (at page 347 of the Petition) it is observed that the Corporate Debtor has perused and acknowledged the letter of the Operational Creditor. Further, they also expressed in their letter that since the Tea Industry is passing through crisis for last five to six years, they are facing some financial problems, and because of which there is delay in making payments. They also agreed to sit for discussion on 20 January, 2020 for making payment schedule, but that meeting did not see the light of the day.

With respect to the point of limitation, it is pertinent to say that several bills were raised between the period 05 May, 2017 to 13 July, 2021 and few payments were also made by the Corporate Debtor, details of which are as follows;

In view of the above facts and circumstances, it is seen that the petition is within limitation and further we are satisfied that the present petition made by the Operational Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. Further, as envisaged under section 9(3)(b) of the Code, an affidavit has also been filed by the Operational Creditor.

It is, accordingly, hereby ordered as follows:-

CP (IB) No. 17/KB/2022 to come up on 07-02-2023 for filing the periodical report.

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