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Judgment
Dr. V.K. Subburaj, Member (T)
This is an application filed by Nilkamal Ltd. ("Applicant") invoking the provision of Section 7 of Insolvency and Bankruptcy Code, 2016 ("the Code") against Wholly Joy Products Pvt. Ltd. ("Respondent") for initiating Corporate Insolvency Resolution Process ("CIRP") against the Respondent on the basis of a claim for Rs. 27,65,428/-.
The Applicant has averred as follows:
a. The Respondent in course of business approached the Applicant and placed various purchase orders from time to time. One of the mandatory stipulations in the purchase orders was that the payments were to be made forthwith on receipt of goods/material purchased without any objection. Goods were dispatched by the Applicant in consonance with the purchase orders and the same were duly received by the Respondent without any protest/objection. The corresponding invoices raised by the Applicant were also accepted by the Respondent without protest. The Respondent made certain payments as under:
Amount
Date
Particulars
11.05.2016
Ch. 318845
Rs. 1,00,000/-
16.11.2016
Ch. 318852
Rs. 31,110/-
05.01.2017
Ch. 329150
Rs. 1,62,400/-
02.02.2017
Ch. 318722
Rs. 2,24,000/-
23.02.2017
Ch. 318723
Rs. 2,50,000/-
06.03.2017
Ch. 318724
Rs. 2,50,000/-
Rs. 10,17,510/-
b. The Applicant followed up with the Respondent for payment of the amount due but no payment was made. Thus, the Applicant sent a demand notice dated 08.03.2018 to the Respondent reflecting the amount due towards the principal and interest.
c. The Applicant issued a final reminder letter dated 26.07.2018 regarding non-receipt of C form thereby requesting the Respondent to clear the outstanding amount due towards the CST difference with interest.
d. Further, a statutory notice dated 06.08.2018 was also issued by the Applicant to the Respondent. No reply was received to the statutory notice. Hence, the Applicant filed the present application.
The Respondent in its reply has opposed the application on the following grounds:
a. Out of the total purchase of Rs. 31,95,012/- the Respondent made the payment of Rs. 18,17,510/- and had returned goods of Rs. 13,77,565/- to the Applicant in the following manner:
S. No.
Date
Particulars
Amount
Remark
1
07.11.2016
Ch. 318845, Corporation Bank
Rs. 1,00,000/-
No dispute
2
14.11.2016
Ah. 318852, Corporation Bank
Rs. 31,110/-
No dispute
3
30.11.2016
Ch. 318846, Corporation Bank
Rs. 4,00,000/-
Concealed by the Applicant from the Tribunal
4
25.12.2016
Ch. 318847, Corporation Bank
Rs. 4,00,000/-
Concealed by the Applicant from the Tribunal
5
05.01.2017
Ch. 329150, Yes Bank
Rs. 1,62,400/-
No dispute
6
02.02.2017
Ch. 318722, Corporation Bank
Rs. 2,24,000/-
No dispute
7
23.02.2017
Ch. 318723, Corporation Bank
Rs. 2,50,000/-
No dispute
8
06.03.2017
Ch. 318724, Corporation Bank
Rs. 2,50,000/-
No dispute
9
21.03.2018
Goods worth Rs. 13,77,565/- returned
Rs. 13,77,565/-
Concealed by the Applicant from the Tribunal
Total
Rs. 31,95,075/-
b. The application deserves to be dismissed in light of the facts concealed by the Applicant from this Tribunal and because there is no debt due from the Respondent to the Applicant.
The bank statement of Corporation Bank annexed to the reply shows that two payments of Rs. 4,00,000/- each were made by the Respondent to the Applicant vide cheque No. 318846 and 318847. Further, the Respondent has also submitted a letter dated 21.03.2018 signed and stamped by the Applicant stating that goods worth Rs. 13,77,565/- have been returned to the Applicant by the Respondent. These transactions have not been stated in the application filed by the Applicant and as rightly stated by the Respondent have been concealed by the Applicant from this Tribunal.
The Applicant has stated that the all the transactions which took place between the parties amounted to Rs. 31,95,012/-, that a payment of Rs. 10,17,510 has been made by the Respondent and that a balance of Rs. 21,77,502/- is due from the Respondent as principal to the Applicant. If the transactions concealed by the Applicant from this Tribunal are added to the amount of Rs. 10,17,510/- then it turns out that the entire payment of Rs. 31,95,012/- has been made by the Respondent to the Applicant.
In light of the fact that the Applicant has not approached the Tribunal with clean hands and that addition of the hidden transactions with the payments admitted by the Applicant totals up to the entire sum of transactions between the parties, this application stands dismissed, with no cost.