Mr. Manoj Lakhera Prop. Of M/S Manoj Kumar & Company vs M/s Bherawa Textile Industries Private Limited

Per- Shri Raghu Nayyar (Technical Member)

This Application has been filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 ('IBC') read with Rule-6 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Mr. Manoj Lakhera Prop. of M/s Manoj Kumar & Company ('Applicant') claiming to be an Operational Creditor with a prayer for initiation of Corporate Insolvency Resolution Process against M/s Bherawa Textile Industries Private Limited ('Respondent').

The Applicant is the sole proprietor of M/s Manoj Kumar & Company. The Permanent Account Number of the Applicant is ABAPL2820N and the GSTIN/UIN No. is 08ABAPL2820N1ZN. The address of the Applicant is F-130, Mandia Road, Pali -306401 (Rajasthan).

The Respondent is a Private Limited Company incorporated under the provisions of the Companies Act, 2013 on 24.06.2015, duly registered with the Registrar of Companies, Jaipur bearing CIN: U17290RJ2015PTC047790 and the Registered Office of the Respondent is located at 4 to 7, Ist Phase Industrial Area Pali - 306401 (Rajasthan). As per the Master Data annexed, the Authorised Capital of the Respondent Company is Rs. 7,50,00,000/- (Rupees Seven Crore Fifty Lakhs Only) and the paid-up capital is Rs. 6,65,00,000 (Rupees Six Crore Sixty-Five Lakhs Only).

According to the Applicant, since October 2016, the Respondent had been purchasing fabric chemicals from the Applicant and the payments thereof were made on time. However, the bill dated 27.01.2018 generated by the Applicant for amount of Rs. 1,19,077 was partly paid and an amount of Rs. 95,699/- is due from the Respondent. Also, the payments for the 9 bills raised thereafter from 31.01.2018 to 05.09.2018 for total amount of Rs. 6,87,512/- were not made by the Respondent. Copy of bills/ invoices are annexed with the Application. In order to clear the outstanding dues, the Respondent had issued multiple cheques between August 2018 to October 2018. However, on presentation all cheques were returned unpaid with remark “CHQ UNUSABLE”. Copy of cheque return memo are annexed with the Application.

According to the Applicant, the last payment of Rs. 60,000 through NEFT was made on 05.09.2018 by the Respondent. Thereafter the Applicant had made various request to clear outstanding dues and issued demand notice dated 11.01.2019 in Form 4, as prescribed under Rule 5 of IBC (Application to Adjudicating Authority) Rules, 2016 demanding an amount of Rs. 9,02,955/- (Rupees Nine Lakh Two Thousand Nine Hundred Fifty-Five Only). Copy of Demand notice along with tracking report is annexed with the Application. The Respondent through its advocate had sent reply dated 30.01.2019 to the demand notice and asked for copies of the document claiming that the same was not attached with the demand notice and had also refused to accept the claim amount. Copy of reply to the demand notice is annexed with the Application. The Applicant had responded to the reply notice vide letter dated 16.02.2019 enclosed with copy of invoices and ledger account and the same is not replied by the Respondent. Copy of response to reply notice is annexed with the Application.

Thus, the Applicant filed the present Application under Section 9 of IBC, 2016. As claimed by the Applicant, the Respondent is liable to pay an amount of Rs. 9,02,955/- as an outstanding amount, as mentioned in Part IV of Form 5:

Perusal of the records of the proceeding before this Tribunal shows that despite service of notice upon the Respondent / Corporate Debtor, as brought out by the order dated 16.10.2019, and in view of non-appearance, this Tribunal was constrained to proceed ex-parte against the Respondent / Corporate Debtor and the submissions of learned counsel for the Applicant were heard and order was reserved.

This Tribunal perused all the relevant papers and it is apparent from the record that the Respondent/Corporate Debtor has continuously failed to make payment against the invoices raised by the Applicant from January 2018 to December 2018. Also, despite the issuance of Section 8 notice under the Insolvency and Bankruptcy Code, 2016 by the Applicant and the receipt of the same by the Respondent, the payment was not made. Though the respondent has not filed reply to the present Application, it is noted that the respondent has not raised any dispute even in the reply to the demand notice sent to the Applicant. In these circumstances the claim stands established along with the prima facie presumption that there is default in payment of the amount due to the Applicant/Operational Creditor and also no dispute is in existence.

It is noted that the Respondent has made continuous default, initially of Rs 95,699/- on 26.02.2018 (due date for the first invoice dated 27.01.2018) which augmented to Rs. 9,02,955/- with interest and other charges on 04.11.2018 (due date for the last invoice dated 05.09.2018). Thus, the matter is within the purview of Law of Limitation.

The Registered Office of the Respondent/Corporate Debtor is situated in Pali, Rajasthan and therefore this Tribunal has jurisdiction to entertain and try this Application. Also, the matter is within the purview of Law of Limitation. Hence, this Tribunal is inclined to initiate the proceedings namely, Corporate Insolvency Resolution Process (CIRP) as against the Respondent/Corporate Debtor as envisaged under the Provisions of IBC, 2016.

The Applicant has named the Interim Resolution Professional (IRP) Mr. Mahesh Chandra Purohit but failed to file certificate of Registration. Therefore, this Tribunal appoints Mr. Vikram Singh Rathore having Registration No. IBBI/IPA-003/IP-N00203/2018-2019/12361 and email [email protected] and contact number 8696934073, as the IRP of the Respondent. The IRP is directed to take all such steps as are required under the statute, inter-alia in terms of Sections 15,17,18,19,20 and 21 of the Code.

The consequences of initiation of CIRP shall be inter alia, as follows: -

Accordingly, CP No. (IB)- 106/9/JPR/2019 is admitted.