Mukesh Agrawal vs M/s. Premshree Devcon Private Limited

[Per: Ms. Manorama Kumari, Member (Judicial)]

That, the instant application is filed by Mr. Mukesh Agrawal, under Section 9 of the Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as "the Code"] read with Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to trigger Insolvency Resolution Process against M/s. Premshree Devcon Private Limited (hereinafter called as respondent/corporate debtor). Advoc

That, the applicant/operational creditor Mr. Mukesh Agrawal, a resident of E-13, Lavkush Awash Vihar, Sukhliya, Indore (M.P.) is a service provider and undertakes industrial and domestic electrical contracts.

That, the respondent/corporate debtor M/s. Premshree Devcom Private Limited is a company incorporated under the Companies Act, 1956 on 13.02.2012 and having its registered office at Khasra No. 8/1/1, Village Mundlabag Patwari Halka 60, Tehsil Sanwer, Indore 452 001, Madhya Pradesh, having Identification No. U45200MP2012PTC027687. That, authorised share capital of the corporate debtor is Rs. 1,00,00,000/- and paid up share capital is Rs. 57,00,000/-.

The applicant/operational creditor submitted that he had raised thirteen invoices during the period from 10.05.2015 to 13.09.2016 totally amounting to Rs. 1,38,900/- plus Rs. 6,371/- towards site expenses towards the work of wiring and fittings at the site of the respondent company which was duly completed by the operational creditor and accordingly the invoices were raised on the corporate debtor which is due and the corporate debtor has committed default in paying the same. Thus, a total sum of Rs. 1,45,271/- (Rupees one lac forty-five thousand two hundred seventy-one only) is due and payable by the respondent.

It is further submitted by the applicant that, despite verbal follow-up over telephone, the corporate debtor grossly failed to pay the outstanding amount. That, there is no dispute regarding the outstanding amount and the quality of the services provided by the operational creditor. That, the operational creditor was compelled to issue demand notice dated 04th February, 2019. That, no reply has been received by the operational creditor nor any dispute has been raised by the corporate debtor. That, copy of demand notice issued in form No. 3 along with the postal receipt & tracking status is provided as Exhibit 1 and placed at page 10-15 to the application. The consent of Interim Resolution Professional has been filed by the learned lawyer of the petitioner.

The applicant has submitted copies of the following documents in support of the claim: -

The respondent/corporate debtor has filed affidavit in reply, whereby, the corporate debtor fairly conceded that he is unable to pay the debt unless the district administration permits to restart the construction of the sole project under the company.

Heard the arguments of the learned counsels appearing for both the sides.

On perusal of the material available on record it is found that, the notice issued by the petitioner to the respondent is duly served on the respondent and the respondent has admitted the debt. Therefore, the service of notice is complete.

The Adjudicating authority, while examining an application under Section 9 of the Act, will have to determine the following: -

In view of the aforesaid discussions and before rejecting and/or admitting the application, we must refer to the legislation guide on Insolvency Law of United Nations Commission on International Trade Law. One of the things the Legislative Guide spoke about was whether the debt is subject to a legitimate dispute or set off, in an amount equal to or greater than the amount of the debt.

Thus, under the facts and circumstances as discussed above, in the light of the Hon'ble Supreme Court Judgement and the provisions thereof as enshrined in Insolvency & Bankruptcy Code, this adjudicating authority is of the considered view that operational debt is due to the Applicant and in support of that operational creditor has placed copy of the invoices at page No. 16 to 29 to the application. That, there is/are no existing dispute raised by the respondent at any point of time nor there is any proceeding pending viz. suit or arbitration between the parties in any Court of Law. That, all the bills raised by the applicant on the respondent are of the year 2015 & 2016. That, the instant application is filed on 25th March, 2019. That, the respondent has acknowledged the debt in the affidavit in reply filed on 2nd May, 2019. That, Applicant is an Operational Creditor within the meaning of sub-section (5) of Section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default.

That, the Application filed by the Applicant is complete in all respects.

The applicant/operational creditor has proposed the name of Mr. Navin Khandelwal to act as Interim Insolvency Professional. This Adjudicating Authority hereby appoint Navin Khandelwal, E-13, Lavkush Awash Vihar, Sukhliya, Indore, Madhya Pradesh having registration No. IBBI/IPA-001/IP-P00703/2017-18/11301 to act as an interim resolution professional under Section 13(1)(c) of the Code.

Section 13 of the Code enjoins upon the Adjudicating Authority to exercise its discretion to pass an order to declare a moratorium for the purposes referred to in Section 14, to cause a public announcement of the initiation of corporate insolvency resolution and call for submission of claims as provided under Section 15 of the Code. Sub-section (2) of Section 13 says that public announcement shall be made immediately after the appointment of Interim Insolvency Resolution Professional. This Adjudicating Authority directs the Insolvency Resolution Professional to make public announcement of initiation of Corporate Insolvency Process and calls for submission of claims under Section 15 as required by Section 13(1)(b) of the Code.

From the above stated discussion and on the basis of material available on record it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code.

The petition is, therefore, admitted and the moratorium is declared for prohibiting all of the following in terms of sub-section (1) of Section 14 of the Code: -

It is further directed that the supply of goods and essential services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. The provisions of sub-section (1) shall, however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.

The order of moratorium shall have effect from the date of receipt of authenticated copy 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.

This Petition stands disposed of accordingly with no order as to costs.

Communicate a copy of this order to the Applicant, Financial Creditor, Corporate Debtor and to the Interim Insolvency Resolution Professional.