Rakesh Kumar Goyal vs Shri Paramsukh Edible Foods Pvt Ltd

Per: Mohan Prasad Tiwari Member Judicial

The Petition was filed by Mr. Rakesh Kumar Goyal, Proprietor of M/s Mohini Food Product under Section 9 of The Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as "the Code"] read with Rule 6 of The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as "the Rules"], as operational creditor/applicant.

The Applicant/Operational creditor, Proprietor of the concern M/s Mohini Food Product is having PAN AJYPG4276H and GST No. 09AJYPG4276H1ZK and having registered office at Agra, Uttar Pradesh is in the business of supplying Various Agriculture related products like Mustard Seeds.

The respondent/corporate debtor is a private limited company incorporated under the provisions Companies Act, 2013 on 3rd February, 2020 and having identification No. U51909MP2020PTC050852 and having registered office at Gwalior, Madhya Pradesh State. Authorised share capital of the respondent company is Rs. 1,00,00,000/- and paid-up share capital is Rs. 54,99,990/-.

It is stated by the applicant that, he had supplied Mustard Seeds to the respondent and had raised invoices from time to time. It is further stated 8 (eight) invoices raised during the period from 05.08.2021 to 31.08.2021 remained unpaid as unpaid operational debt. Copy of invoices and E-Way bills are annexed to the application. The applicant has annexed to the application detailed computation of the outstanding invoices as well as part payment received. According to the applicant, net amount of Rs. 1,42,46,178/- (Rupees One Crore Forty-Two Lakh Forty-Six Thousand One Hundred Seventy-Eight Only) along with interest thereon amounting to 28,58,480/- (Rupees Twenty-Eight Lakhs Fifty-Eight Thousand Four Hundred and Eighty Only) calculated @ 12% p.a. for the period from the due date of invoice till 10.05.2023 (i.e. date of demand notice) is due and payable by the respondent towards supply of goods during the period from 05.08.2021 to 31.08.2021. The Applicant has submitted copy of the ledger account of the Corporate Debtor from the books of the Operational Creditor to substantiate the claim. Transaction between parties were continuous and the corporate debtor has made few partial payments with respect to the invoices raised by the Operational Creditor for the Goods delivered. Thereafter the operational creditor has requested corporate debtor on various occasions for the payment of outstanding dues.

The applicant has further submitted that having failed to receive the operational debt due and payable by the respondent, the petitioner was compelled to Issue notice to the respondent under section 8 in form No. 3 & 4 dated 10.05.2023 (page 496-503). The applicant filed application supported with affidavit, affidavit in compliance of section 9(3)(b) of the IB Code, unpaid/part paid invoices, E-Way Bills, Computation of the outstanding invoices, Ledger Account, GST Returns and Bank Account of the petitioner and demand notice in form 3 & 4.

On perusal of the records it is found that the instant petition filed on 20th July, 2023 was notified for the first time on 13.10.2023 wherein PCA Vivek Zalavadiya had appeared and this Tribunal directed the applicant to issue notice to the respondent. Thereafter, upon direction of this Tribunal, applicant filed one interlocutory Application bearing IA 307 (MP) of 2024 to take on record the name of the Applicant as Rakesh Kumar Goyal, proprietor of M/s Mohini Food Product which was allowed by our order dated 14.06.2024 and the Applicant was again directed to serve the amended copy to the respondent.

Thereafter, despite giving number of opportunities, the respondent appeared through counsel on 05.11.2024 and filed reply on 22.10.2024. However, vide our order dated 10.12.2024, Respondent was served the copy of the reply to the counsel for the Applicant since it was pointed out by the counsel for the applicant that the respondent has served their reply to the incorrect email ID of the Applicant's counsel.

In the reply affidavit of the corporate debtor, the defense raised by the CD is as under-

alleged debt amount is not in default because there was no actual/complete supply being made to the Respondent and there is no agreement in writing on interest payment

ii) there is neither any agreement nor any purchase order nor any acceptance nor any acknowledgement which shows whether goods were actually supplied to the Respondent

iii) the very address mentioned in the e-way bill is incorrect which shows no supply being made.

iv) there is no agreed timeline between the parties on 15 days. The NCLT's judgment mentioned in the Petition has no application to this case.

GST returns for august 2021 relied upon by Petitioner no-where clarify or segregate the supply. and

vi) The petition involved disputed questions of fact.

The Applicant filed following grounds in the rejoinder

Formal acceptance of supply is not required because documents submitted by petitioner are as per terms of trade

ii) Respondent has itself deducted TDS u/s 194Q of the Income Tax Act, 1961 which mandates receipt of the goods to deduct TDS for purchases exceeding 50 lakhs. This itself shows acceptance of goods by the corporate debtor

iii) In absence of time line / due date mentioned in the invoice then it means that no credit is given to the Buyer / CD and hence due date is always deemed to be the invoice date. However, the OC has taken 15 days as due date as per the oral terms agreed between the parties. Reliance is placed on the judgement of Hon'ble NCLT, Mumbai bench in case of OM Industries Vs. Birla Precision Technologies Ltd [Citation: Case Citation: (2023) ibclaw.in 397 NCLT]

iv) The Petitioner is an MSME therefore it is entitled to an interest

Thereafter, both parties were heard and vide order dated 25.04.2025, directed the Corporate debtor to explain and provide the following information & documents by way of additional affidavit:

The Respondent had sought and granted two weeks' time to file the same. The applicant was also directed to file the rebuttal affidavit if any within one week thereafter.

Thereafter, the Corporate Debtor sought another opportunity to file the same and was granted another opportunity vide order dated 16.06.2025.

Thereafter, vide our order dated 30.06.2025, it is recorded that CD has filed affidavit on 20.06.2025 and the applicant has filed rebuttal affidavit on 26.06.2025 which were taken on record.

In the affidavit filed by the Respondent Corporate debtor on 20.06.2025, the CD has submitted following

The CD has deducted TDS @0.1% u/s 194Q of the Income Tax Act, 1961 after 1st July, 2021 on the Purchases made from OC amounting to total of Rs. 3,61,86,685/-

ii) Corporate Debtor admitted to have claimed Input Tax Credit of GST paid by the Supplier i.e. OC

iii) Corporate Debtor has submitted ledger Account from the books of the CD in which the outstanding as on the date of filing application was Rs. 1,29,33,407/- as against the o/s amount of Rs. 1,42,46,179/- stated in the Application filed by OC.

The Applicant submitted following in their rebuttal affidavit dated 26.06.2025

CD has admitted to have accepted the supply by deducting the TDS on purchases made from the Applicant OC. As per section 194Q TDS to be deducted at the earlier of Purchase date of payment date. Out of above, total outstanding amount as on the date of application is Rs. 1,42,46,179/-

ii) Corporate Debtor admitted to have claimed Input Tax Credit of GST paid by the Supplier i.e, OC

iii) Corporate Debtor has submitted ledger Account from the books of the CD in which the outstanding as on the date of application was Rs. 1,29,33,407/- as against the o/s amount of Rs. 1,42,46,179/- Reconciliation of the amount as per ledger produced by CD and as appearing in the books of the applicant is submitted by the Applicant in rebuttal affidavit wherein the Applicant is stating that CD has allegedly passed some fictious entries without any basis in order to conveniently reduce the o/s amount slightly below the threshold limit in order to try to make argument on the basis of threshold limit

It is argued by the Applicant that threshold limit under section 4 of the Code is to be considered as on the date of filing Application before the Adjudicating Authority. Reliance is placed on the following judgements.

This tribunal is inclined to agree with the arguments advanced by the Applicant that the threshold limit is to be checked as on the date of filing application by the Operational Creditor or the financial credit as the case may be. As admitted by the corporate debtor, total outstanding debt as on the date of filing the Application was Rs. 1,29,33,407/- against the o/s amount of Rs. 1,42,46,179/- stated by the Applicant.

At this stage, we are not inclined to enter into the issue of reconciliation statement highlighting the alleged fictitious entries passed by the corporate debtor to conveniently try to reduce the outstanding amount slightly below threshold limit to avoid CIRP as submitted by the Applicant as even otherwise the principal amount outstanding as on the date of filing application by the Applicant as per the ledger statement submitted by the Corporate debtor is more than threshold limit of 1 crore.

On perusal of the record, It Is found that the demand notice issued by the applicant under section 8 of the I & B Code on 10.05.2023 has been served upon the corporate debtor and no dispute has been raised by the corporate debtor.

On perusal of the record, it is also found that the Instant petition filed by the applicant is well within limitation and there is no denial of the operational debt or any pre-existing dispute regarding the operational debt from the side of the corporate debtor.

In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the operational debt due and payable to the Applicant.

The documents produced by the operational creditor clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'operational debt'.

It has been observed in Mobilox Innovative Private Limited vs. Kirusa Software Private Limited [2017] 1 IBJ(JP) 2 SC that while examining an application under Section 9 of the Act, will have to determine the following: -

Thus, under the facts and circumstances and as discussed herein 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 it fulfilled the requirement of I & B Code. That, service is complete and no dispute has ever been raised by the respondent at any point of time. That, Applicant is an Operational Creditor within the meaning of Section 5 sub-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 and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force. The debt and default being established, the application under Section 9 is admissible. Consequently, a moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016, is to be declared, prohibiting the institution or continuation of suits, execution of judgements, transfer of assets, and enforcement of security interests.

The Operation Creditor proposes Mr. Chirag Rajendrakumar Shah as the Interim Resolution Professional having Registration No. IBBI/IPA-001/IP-P01169/2018-19/11837 whose consent and valid registration are provided. The Tribunal finds no impediment to his appointment.

Accordingly, in light of the above facts and circumstances, it is, hereby ordered as under: -

a. The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority;

b. Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein;

c. Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2022;

d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor.

e. The provisions of Sub-Section (1) shall however, not apply to such transactions, agreements as may be notified by the Central Government in consultation with any financial sector regulator and to a surety in a contract of guarantee to a corporate debtor.

Accordingly, this application CP(IB)/86(MP)2023 is hereby admitted. A certified copy of this order may be issued, if applied for, upon compliance with all requisite formalities.