RDC Concrete (India) Private Limited vs Multi Storeys Projects Private Limited

Per: Suchitra Kanuparthi, Member (Judicial)

This is anapplication being C.P. (IB) No. 2318/NCLT/MB/2019 filed by RDC Concrete (India) Private Limited, the Operational Creditor/Applicant, under section 9 of Insolvency & Bankruptcy Code, 2016 (I&B Code) against Multi Storeys Projects Private Limited, the Corporate Debtor, for initiating Corporate Insolvency Resolution Process (CIRP).

The Application is filed by Senior Officer (Credit Control) Mr. Nilesh Shinde, authorised signatory of Operational Creditor, claiming a total default amount of Rs.50,00,008/- (Rupees Fifty Lakhs and Eight Only). The statement for particulars of claim amount is annexed to the Application.

The Applicant submitted that it supplied Ready Mix Concrete (RMC) to the Corporate Debtor at Mumbai from April 2018 to August 2018 and raised invoices for the same upon the Corporate Debtor. Copies of the said invoices are annexed to the Application.

The Applicant submitted that it supplied RMC as per order placed by the Corporate Debtor which was total amounting to Rs.61,33,011/-. Further the Applicant submitted that on 23.08.2018 it received a part payment of Rs.9,00,000/- from the Corporate Debtor and sum of Rs.52,33,011/- remained due and payable to the Applicant.

The Applicant submitted that even after repeatedly follow up by the Applicant, the Corporate Debtor failed to make the payment of Rs.52,33,011/- to the Applicant. Therefore, the Applicant issued Demand Notice dated 01.12.2018 to the Corporate Debtor under Section 8 of the I&B Code demanding payment of outstanding amount of Rs.52,33,011/- and it was not delivered. Further the Applicant submitted that it again served the same Demand Notice to the Corporate Debtor on 03.01.2019 which was delivered on 04.01.2019 and the Applicant also submitted the postal tracking report to that effect.

The Applicant submitted that after receipt of the said Demand Notice, the Corporate Debtor on 15.01.2019 made a payment of sum of Rs.2,33,003/-. Further the Applicant submitted that the Corporate Debtor handed over the following cheques to the Applicant:

The Applicant submitted that it enclosed the email communication with the Corporate Debtor dated 23.08.2018 wherein Corporate Debtor has requested Applicant to withdraw the Legal Notice u/s 138 of Negotiable Instrument Act 1881. The Corporate Debtor further confirmed that they had initiated the payment of Nine Lakhs and had detailed discussion with the Applicant for balance payment.

The Applicant filed present Application on 19.06.2019. The Applicant was directed to serve the Court Notice to the Corporate Debtor vide our Order dated 16.07.2019. Further the Applicant was directed to publish the notice two in newspapers i.e. in English and one in local vernacular language vide our Order dated 09.12.2019. The Applicant filed its Affidavit of Service of Notice on 29.01.2020. Thus, it is on record that the Corporate Debtor chose not to appear and file any objections in its defence despite service of court notice as well as publication in newspapers.

On perusal of the documents submitted by the Applicant and hearing the Applicant’s counsel, it is clear that Applicant has supplied Ready Mix Concrete from April 2018 to August 2018 to the Corporate Debtor total amounting to Rs.61,33,011/-. Out of the said amount of Rs.61,33,011/- the Applicant received a part payment of Rs.9,00,000/- on 23.08.2018 and Rs.2,33,003/- on 15.01.2019. Further the Corporate Debtor handed over the Three cheques to the Applicant, but all cheques were dishonoured for the reason “payment stop by drawer”. Thus, the Corporate Debtor has failed to make payment of sum of Rs.50,00,008/-.

The Applicant, having supplied Ready Mix Concrete to the Corporate Debtor for which the Corporate Debtor has failed to make payments, is an Operational Creditor as per the provisions of the I&B Code, 2016. The Corporate Debtor has not raised any dispute in respect of the goods and the amount to be paid to the Applicant. The Corporate Debtor chose not to file any reply to the petition. Thus, the debt amount of more than Rupees One Lakh and default by the Corporate Debtor has also been established and there is no pre-existing dispute.

The Application is complete and has been filed under proper form. Copy of the Demand Notice dated 01.12.2018 along with postal track report reflecting due receipt of Notice by Corporate Debtor and Affidavit in compliance of section 9(3)(b) dated 06.06.2019 stating that the Applicant has not received any notice of dispute from the Corporate Debtor have been filed with this Bench.

The Application under sub-section (2) of Section 9 of I&B Code, 2016 is complete. The existing operational debt of more than rupees one lakh against the corporate debtor and its default is also proved. Accordingly, the Application filed under section 9 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the corporate debtor deserves to be admitted.

This Application filed under Section 9 of I&B Code, 2016, presented by RDC Concrete (India) Private Limited, Operational Creditor / Applicant against Multi storeys Projects Private Limited, Corporate Debtor for initiating corporate insolvency resolution process is admitted. We further declare moratorium u/s 14 of I&B Code with consequential directions as mentioned below:

a. such transactions as may be notified by the Central Government in consultation with any financial sector regulator;

b. a surety in a contract of guarantee to a Corporate Debtor.

The Registry is directed to immediately communicate this order to the Operational Creditor, the Corporate Debtor and the Interim Resolution Professional even by way of email or WhatsApp. Compliance report of the order by Designated Registrar is to be submitted today.