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Judgment
PER SHRI L. N. GUPTA, MEMBER (T)
M/s. Sangam (India) Limited through its Authorized Representative Mr. Anil Kumar Jain (for brevity, the ‘Applicant/ Operational Creditor’) has filed the present application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity, the ‘IBC, 2016’) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 with a prayer to initiate the Corporate Insolvency Resolution Process against M/s. Hari Govind Texfab (India) Private Limited (for brevity, the ‘Respondent’).
The Respondent namely M/s. Hari Govind Texfab (India) Private Limited is a Company incorporated on 29.09.2008 with CIN U17120DL2008PTC183817 under the provisions of the erstwhile Companies Act, 1956 having its registered Office at Shop No. 10, 911241, Plot No. 26, Ram Bazar, Subhash Road, South Gandhi Nagar, New Delhi- 110031, which is within the territorial jurisdiction of this Bench. The Authorized Share Capital of the Corporate Debtor is Rs. 50,00,000/- and Paid-up Share Capital is Rs. 44,51,000/- as per the Master Data of the Respondent.
It is submitted by the Applicant that it is the producer of PV dyed yarn, cotton and OE yarn and ready to stitch fabrics. In the year 2008, the Respondent approached the Applicant for the supply of Denim Fabric. Accordingly, the Applicant and Respondent entered into a formal understanding, whereby the Respondent agreed to make timely payments against the invoices raised by the Applicant with the credit period of 45 days from the date of invoice and pay interest @ 15% per annum in case of default.
That during the period from 03.10.2008 to 14.06.2019, the Applicant supplied Denim Fabric to the Respondent of the value of Rs.22,86,55,497/-, against which the Respondent paid an amount of Rs.20,44,15,371/- on running account basis. Thus, there is an outstanding balance of Rs.2,42,40,126/- against the Respondent, which is due and payable. In support of its contention, the Applicant has enclosed the computation of dues/list of invoices, as per which the date of first invoice is 20.05.2013 and the date of last invoice is 26.12.2015. It has further added that the last payment received from the Respondent towards the Denim Fabric supplied to them is of Rs.3,50,000/- made through RTGS on 14.06.2019.
Despite regular follow up, the Respondent did not release the balance payment against the invoices. The particulars of the Operational Debt claimed by the Applicant including the total amount of debt, default and the date of default are mentioned in Part IV of the application, which is reproduced overleaf, for the sake of convenience :
PART-IV
PARTICULARS OF OPERATIONAL DEBT
1. TOTAL AMOUNT OF DEBT, DETAILS OF TRANSACTIONS ON ACCOUNT OF WHICH FELL DUE AND THE DATE FROM WHICH SUCH DEBT FELL DUE 1. Total Amount of Debt: Rs. 5,82,09,276/- (Rupees Five Crore Eighty-Two Lac Nine Thousand Two Hundred and Seventy-Six Only) as on 30.09.2021 alongwith further interest @ 15% per annum on the Invoices from 01.10.2021 until full payment/ realization thereof. Sr. No. Particulars of Debt Dues Amount (Rs.) (a) Principal in respect of sale of Denim Fabric as per unpaid outstanding Invoices. 2,42,40,126/- (b) Accrued Interest in respect of sale of Denim Fabric from the Default date (after 45 days credit period) of respective unpaid outstanding Invoices till 30/09/2021 2,63,71,281/- (c) Old Interest pending and 75,97,869/-
Accrued in respect of sale of Denim Fabric from the default date (after 45 days credit period) up to the date of payment of such Invoices. Total 5,82,09,276/- 2. Details of transaction: 1. Operational Creditor is one of the foremost producers in PV dyed yarn, cotton and OE yarn and also ready to stitch fabrics. With such repute, our client ensures strict compliance of business ethics and ensures utmost dedication, sincerity and transparency in conduct of all its business pursuits. In the year 2008, the Corporate Debtor approached the Operational Creditor for the supply of Denim Fabric. 2. As per the customs and usage of the business, the Operational Creditor and Corporate Debtor entered into a formal understanding wherein the Corporate Debtor agreed to make timely payments against the invoices raised by the Operational creditor within the credit period of 45 days from the date of respective invoice and to pay interest @ 15% per annum in default of making the payment within said credit period. That Operational Creditor and the entire team with its utmost dedication and hard work had been providing services to the Corporate Debtor. The copies of outstanding invoices raised by the Operational Creditor from 20.05.2013 to 26.12.2015 has been annexed herein and marked as ANNEXURE- E.
3.That Corporate Debtor from the inception of this business relationship had started to breach the terms and conditions of the formal understanding entered into and showed reluctance in making payment. To keep the business relations cordial Operational Creditor herein on several occasions accommodated Corporate Debtor's reluctance but CD mistaken OC's accommodative behaviour to be a usual practice and made habitual and routine delays in clearing the invoices by not making payments to Operational Creditor.
4.That since 03.10.2008 till 14.06.2019, Operational Creditor had supplied Denim Fabric of Rs. 22,86,55,497/- (Rupees Twenty-Two Crore Eighty-Six Lac Fifty-Five Thousand Four Hundred and Ninety-Seven Only) out of which the Corporate Debtor has paid to the tune of Rs. 20,44,15,371/- (Rupees Twenty Crore Forty-Four Lac Fifteen Thousand Three Hundred and Seventy-One Only), the same was paid on running account basis and not as per specific invoices. The outstanding balance of Rs. 2,42,40,126/- (Rupees Two Crore Forty-Two Lac Forty Thousand One Hundred and Twenty-Six Only) is due and payable. The copy of the Ledger Statement of Corporate Debtor as maintained in the books of Operational Creditor is annexed herewith and marked as ANNEXURE- F.
5.That the last payment made by the Corporate Debtor toward the Denim Fabric supplied to them by the Operational Creditor was Rs. 3,50,000/-, the same was made through RTGS on 14.06.2019 as is evident from the Ledger Statement. 6. That pursuant to this, Operational Creditor running from pillar to post for the release of payment. That at several occasions the authorized representative and other officials of Operational Creditor tried to arrange meetings with the officials of the Corporate Debtor with the hope to settle the account, but all went in vain. That Corporate Debtor by not releasing the payments against the invoices rose is clearly violating the terms of the formal arrangement and as such the Operational Creditor can exercise its right to take formal action against the Corporate Debtor. 7. The Operational Creditor has sent a Statutory Demand Notice dated 28.10.2021 under Section 8 of the IB code, 2016, the same has been delivered upon the Corporate Debtor, however, the same was not replied to within 10 days of the receipt of the Demand Notice and has not been replied till date. The copy of Demand Notice dated 28.10.2021 along with postal receipts and proof of delivery has been annexed herein and marked as ANNEXURE- I (COLLY) 3. Date from which such debt fell due: The Corporate Debtor failed and neglected to make the payments of the Invoices within the credit period of 45 days in respect of the sale of Denim Fabric from the date of respective Invoices in respect thereof, the details whereof are set out in Computation Tables annexed hereto as Annexures – A-3. The details of the dates on which such Debt fell due are given in the Column titled as “Debt Fell Due / Default Date” in the Computation Tables annexed hereto as ANNEXURES – G. 2AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH DEFAULT OCCURRED (ATTACH THE WORKING FOR COMPUTATION OF AMOUNT AND DAYS OF DEFAULT IN TABULAR FORM)Amount of Debt: Rs. 5,82,09,276/- Due Date from which such debt fell due: The Corporate Debtor failed and neglected to make the payments of the Invoices within the credit period of 45 days in respect of the sale of Denim Fabric from the date of respective Invoices in respect thereof. The details of the dates on which such Debt fell due are given in the Column titled as “Debt Fell Due / Default Date” in the Computation Tables annexed hereto as Annexures – G.
From the perusal of the Part IV of the Application, it is observed that the Applicant has claimed an amount of Rs. 5,82,09,276/- as unpaid operational debt.
We observe from the records that during the course of hearing on 08.03.2022, the Applicant was directed to bring on record, the date of default, affidavit under Section 9(3)(b) of IBC, 2016 and affidavit under Section 9(3)(c) of IBC, 2016. Subsequently, the Applicant filed the compliance Affidavit dated 11.04.2022, wherein the Applicant has indicated that the debt fell due on 15.06.2019.
It is stated by the Applicant that since the Respondent did not make the due payment of its operational debt, it had issued a Demand Notice dated 28.10.2021 under Section 8 of IBC 2016 at the registered office of the Respondent, which was served to the Respondent via Speed Post and Courier. The Tracking Report of the Courier has been placed at page no. 222 of the application. The Applicant has also filed the Affidavit under Section 9(3)(b) of 2016 stating that no notice of dispute has been given by the Respondent and also, there is no pre-existing dispute.
On issuance of notice, the Respondent neither appeared nor filed any reply. Since, despite notice, no one appeared on behalf of the Respondent, it was proceeded ex-parte vide order dated 24.08.2022.
We have heard the Applicant and perused the documents placed on record. Before examining the application on merit, we would like to examine whether the present application is filed within the period of limitation?
While perusing the record, we notice that vide Affidavit dated 11.04.2022, the Applicant has relied on 15.06.2019 as the date of default and in this context, it has relied on Annexure G of the application. Therefore, we would like to refer to the Annexure G, which is reproduced overleaf :
Sangam (India) Ltd. - Denim Division COMPUTATION OF DUES - M/s HARI GOVIND TEXFAB (INDIA) PVT LTD., DELHI
UPTO 30-09-2021
S. No. Invoice No. Invoice Date Invoice Amount Balance Amount Debit Fell Due/Default Date (Credit Period - 45 Days) Interest upto 30.09.2021 Delay Days Intl. Amount @15% Per Annum (Rs.) 1 907863416 20-05-2013 2,62,165.00 1,03,022.00 04-07-2013 30-09-2021 3010 127437 2 907863554 31-05-2013 1,74,344.00 1,74,344.00 15-07-2013 30-09-2021 2999 214873 3 907863555 31-05-2013 2,21,966.00 2,21,966.00 15-07-2013 30-09-2021 2999 273565 4 907863716 19-06-2013 1,84,816.00 1,84,816.00 03-08-2013 30-09-2021 2980 226336 5 907863816 30-06-2013 1,81,480.00 1,81,480.00 14-08-2013 30-09-2021 2969 221430 6 907863910 12-07-2013 2,97,171.00 2,97,171.00 26-08-2013 30-09-2021 2957 361124 7 907864179 24-08-2013 3,81,676.00 3,81,676.00 08-10-2013 30-09-2021 2914 457070 8 907864407 26-09-2013 4,45,501.00 4,45,501.00 10-11-2013 30-09-2021 2881 527461 9 907864534 11-10-2013 4,57,126.00 4,57,126.00 25-11-2013 30-09-2021 2866 538407 10 907864647 25-10-2013 1,05,622.00 1,05,622.00 09-12-2013 30-09-2021 2852 123795 11 906922359 25-10-2013 1,96,607.00 1,96,607.00 09-12-2013 30-09-2021 2852 230434 12 906922360 25-10-2013 2,72,394.00 2,72,394.00 09-12-2013 30-09-2021 2852 319261 13 906922511 31-10-2013 2,85,410.00 2,85,410.00 15-12-2013 30-09-2021 2846 333812 14 906922512 31-10-2013 2,84,184.00 2,84,184.00 15-12-2013 30-09-2021 2846 332378 15 906922598 07-11-2013 2,29,785.00 2,29,785.00 22-12-2013 30-09-2021 2839 268093 -9 906923556 23-12-2013 3,56,131.00 3,56,131.00 06-02-2014 30-09-2021 2793 408770 17 906923570 23-12-2013 3,97,026.00 3,97,026.00 06-02-2014 30-09-2021 2793 455710 18 906923820 06-01-2014 3,05,172.00 3,05,172.00 20-02-2014 30-09-2021 2779 348523 19 907865450 07-01-2014 3,29,850.00 3,29,850.00 21-02-2014 30-09-2021 2778 376571 20 907865451 07-01-2014 3,81,708.00 3,81,708.00 21-02-2014 30-09-2021 2778 435775 21 907865481 10-01-2014 3,19,017.00 3,19,017.00 24-02-2014 30-09-2021 2775 363810 22 907865489 11-01-2014 2,90,655.00 2,90,655.00 25-02-2014 30-09-2021 2774 331347 23 906924297 31-01-2014 3,16,719.00 3,16,719.00 17-03-2014 30-09-2021 2754 358456 24 906924322 31-01-2014 2,21,662.00 2,21,662.00 17-03-2014 30-09-2021 2754 250873 25 907865894 14-02-2014 1,25,477.00 1,25,477.00 31-03-2014 30-09-2021 2740 141291 26 906924607 18-02-2014 3,21,557.00 3,21,557.00 04-04-2014 30-09-2021 2736 361553 27 906924672 20-02-2014 83,886.00 83,886.00 06-04-2014 30-09-2021 2734 94251 28 906924673 20-02-2014 3,23,133.00 3,23,133.00 06-04-2014 30-09-2021 2734 363060 29 906924771 24-02-2014 3,57,334.00 3,57,334.00 10-04-2014 30-09-2021 2730 400899 30 906924832 26-02-2014 3,65,535.00 3,65,535.00 12-04-2014 30-09-2021 2728 409800 31 906924897 28-02-2014 2,14,091.00 2,14,091.00 14-04-2014 30-09-2021 2726 239841 32 907866072 28-02-2014 3,61,903.00 3,61,903.00 14-04-2014 30-09-2021 2726 405431 33 907866105 04-03-2014 3,60,731.00 3,60,731.00 18-04-2014 30-09-2021 2722 403525 34 907866180 13-03-2014 3,15,997.00 3,15,997.00 27-04-2014 30-09-2021 2713 352315 35 906925602 04-04-2014 3,13,706.00 3,13,706.00 19-05-2014 30-09-2021 2691 346924 36 906925678 09-04-2014 2,38,497.00 2,38,497.00 24-05-2014 30-09-2021 2686 263261 37 906925679 09-04-2014 72,282.00 72,282.00 24-05-2014 30-09-2021 2686 79787 38 907866533 09-04-2014 29,163.00 29,163.00 24-05-2014 30-09-2021 2686 32191 39 906926016 24-04-2014 2,71,222.00 2,71,222.00 08-06-2014 30-09-2021 2671 297713 40 906926017 24-04-2014 2,70,584.00 2,70,584.00 08-06-2014 30-09-2021 2671 297012 41 906926746 27-05-2014 2,38,705.00 2,38,705.00 11-07-2014 30-09-2021 2638 258782 42 906926747 27-05-2014 2,53,204.00 2,53,204.00 11-07-2014 30-09-2021 2638 274501 43 907867220 27-05-2014 2,49,442.00 2,49,442.00 11-07-2014 30-09-2021 2638 270422 44 907867222 27-05-2014 77,068.00 77,068.00 11-07-2014 30-09-2021 2638 83550 45 907867223 27-05-2014 2,70,584.00 2,70,584.00 11-07-2014 30-09-2021 2638 293343 46 907867224 27-05-2014 2,63,154.00 2,63,154.00 11-07-2014 30-09-2021 2638 285288 47 907867225 27-05-2014 1,56,576.00 1,56,576.00 11-07-2014 30-09-2021 2638 169746 48 906927073 12-06-2014 3,38,503.00 3,38,503.00 27-07-2014 30-09-2021 2622 364749
S. No. Invoice No. Invoice Date Invoice Amount Balance Amount Debit Fell Due/Default Date (Credit Period - 45 Days) Interest upto 30.09.2021 Delay Days Intt. Amount @15% Per Annum (Rs.) 49 906927075 12-06-2014 2,70,452.00 2,70,452.00 27-07-2014 30-09-2021 2622 291421 50 906927076 12-06-2014 2,66,141.00 2,66,141.00 27-07-2014 30-09-2021 2622 286776 51 906927278 20-06-2014 1,06,720.00 1,06,720.00 04-08-2014 30-09-2021 2614 114644 52 906927443 27-06-2014 3,20,525.00 3,20,525.00 11-08-2014 30-09-2021 2607 343401 53 906927457 27-06-2014 2,63,217.00 2,63,217.00 11-08-2014 30-09-2021 2607 282003 54 906927458 27-06-2014 2,18,611.00 2,18,611.00 11-08-2014 30-09-2021 2607 234213 55 906927459 27-06-2014 1,76,564.00 1,76,564.00 11-08-2014 30-09-2021 2607 189165 56 906927531 29-06-2014 55,009.00 55,009.00 13-08-2014 30-09-2021 2605 58890 57 906927532 29-06-2014 1,01,523.00 1,01,523.00 13-08-2014 30-09-2021 2605 108685 58 906927571 29-06-2014 1,34,814.00 1,34,814.00 13-08-2014 30-09-2021 2605 144325 59 906927793 11-07-2014 3,69,717.00 3,69,717.00 25-08-2014 30-09-2021 2593 393977 60 906928036 22-07-2014 2,99,755.00 2,99,755.00 05-09-2014 30-09-2021 2582 318069 61 906928037 22-07-2014 2,96,646.00 2,96,646.00 05-09-2014 30-09-2021 2582 314770 62 906928039 22-07-2014 2,99,180.00 2,99,180.00 05-09-2014 30-09-2021 2582 317459 63 906928077 23-07-2014 1,03,985.00 1,03,985.00 06-09-2014 30-09-2021 2581 110295 64 906928423 11-08-2014 1,90,757.00 1,90,757.00 25-09-2014 30-09-2021 2562 200844 65 907868369 11-08-2014 32,801.00 32,801.00 25-09-2014 30-09-2021 2562 34535 66 907868382 12-08-2014 2,68,885.00 2,68,885.00 26-09-2014 30-09-2021 2561 282992 67 907868498 22-08-2014 2,66,975.00 2,66,975.00 06-10-2014 30-09-2021 2551 279885 68 907868499 22-08-2014 2,73,557.00 2,73,557.00 06-10-2014 30-09-2021 2551 286785 69 906928795 28-08-2014 1,76,651.00 1,76,651.00 12-10-2014 30-09-2021 2545 184758 70 906928796 28-08-2014 1,97,265.00 1,97,265.00 12-10-2014 30-09-2021 2545 206318 71 906929399 26-09-2014 1,77,091.00 1,77,091.00 10-11-2014 30-09-2021 2516 183107 72 906929400 26-09-2014 1,93,733.00 1,93,733.00 10-11-2014 30-09-2021 2516 200315 73 907869053 26-09-2014 1,87,698.00 1,87,698.00 10-11-2014 30-09-2021 2516 194075 74 906929497 30-09-2014 2,34,347.00 2,34,347.00 14-11-2014 30-09-2021 2512 241923 75 906929498 30-09-2014 2,48,663.00 2,48,663.00 14-11-2014 30-09-2021 2512 256702 76 906929499 30-09-2014 2,35,078.00 2,35,078.00 14-11-2014 30-09-2021 2512 242678 77 906929616 11-10-2014 1,71,659.00 1,71,659.00 25-11-2014 30-09-2021 2501 176439 78 906929617 11-10-2014 2,55,192.00 2,55,192.00 25-11-2014 30-09-2021 2501 262298 79 906929619 11-10-2014 61,583.00 61,583.00 25-11-2014 30-09-2021 2501 63296 80 907869220 11-10-2014 76,609.00 76,609.00 25-11-2014 30-09-2021 2501 78739 81 907869221 11-10-2014 90,856.00 90,856.00 25-11-2014 30-09-2021 2501 93383 82 907869227 11-10-2014 67,352.00 67,352.00 25-11-2014 30-09-2021 2501 69225 83 906929707 15-10-2014 1,91,801.00 1,91,801.00 29-11-2014 30-09-2021 2497 196819 84 906929708 15-10-2014 1,90,161.00 1,90,161.00 29-11-2014 30-09-2021 2497 195136 85 906929709 15-10-2014 1,39,061.00 1,39,061.00 29-11-2014 30-09-2021 2497 142699 86 906929712 16-10-2014 1,60,230.00 1,60,230.00 30-11-2014 30-09-2021 2496 164356 87 906929713 16-10-2014 1,75,012.00 1,75,012.00 30-11-2014 30-09-2021 2496 179519 88 906929714 16-10-2014 1,35,452.00 1,35,452.00 30-11-2014 30-09-2021 2496 138940 89 906929715 16-10-2014 92,617.00 92,617.00 30-11-2014 30-09-2021 2496 95002 90 906929716 16-10-2014 36,825.00 36,825.00 30-11-2014 30-09-2021 2496 37773 91 906929920 28-10-2014 3,02,977.00 3,02,977.00 12-12-2014 30-09-2021 2484 309286 92 906930583 27-11-2014 2,37,435.00 2,37,435.00 11-01-2015 30-09-2021 2454 239452 93 907869811 27-11-2014 2,19,979.00 2,19,979.00 11-01-2015 30-09-2021 2454 221847 94 906930628 28-11-2014 2,56,024.00 2,56,024.00 12-01-2015 30-09-2021 2453 258093 95 906930629 28-11-2014 2,47,702.00 2,47,702.00 12-01-2015 30-09-2021 2453 249704 96 906930630 28-11-2014 2,58,763.00 2,58,763.00 12-01-2015 30-09-2021 2453 260854 97 906930631 28-11-2014 2,35,414.00 2,35,414.00 12-01-2015 30-09-2021 2453 237317 98 906930632 28-11-2014 3,08,342.00 3,08,342.00 12-01-2015 30-09-2021 2453 310834 99 906931153 24-12-2014 1,42,450.00 1,42,450.00 07-02-2015 30-09-2021 2427 142079 100 906931156 24-12-2014 1,48,159.00 1,48,159.00 07-02-2015 30-09-2021 2427 147773
S. No. Invoice No. Invoice Date Invoice Amount Balance Amount Debit Fell Due/Default Date (Credit Period - 45 Days) Interest upto 30.09.2021 Delay Days Intt. Amount @15% Per Annum (Rs.) 101 906931157 24-12-2014 1,49,261.00 1,49,261.00 07-02-2015 30-09-2021 2427 148873 102 906931177 25-12-2014 1,54,988.00 1,54,988.00 08-02-2015 30-09-2021 2426 154521 103 906931184 25-12-2014 1,53,593.00 1,53,593.00 08-02-2015 30-09-2021 2426 153130 104 906931214 27-12-2014 2,19,484.00 2,19,484.00 10-02-2015 30-09-2021 2424 218642 105 906931215 27-12-2014 2,47,049.00 2,47,049.00 10-02-2015 30-09-2021 2424 246101 106 906931490 15-01-2015 2,16,124.00 2,16,124.00 01-03-2015 30-09-2021 2405 213607 107 907870368 15-01-2015 1,18,723.00 1,18,723.00 01-03-2015 30-09-2021 2405 117341 108 906939618 24-12-2015 82,019.00 82,019.00 07-02-2016 30-09-2021 2062 69503 109 906939730 26-12-2015 1,19,492.00 1,19,492.00 09-02-2016 30-09-2021 2060 101159 30-09-2021 Total 2,42,40,126.00 2,63,71,281 Summary
Amount (Rs.)
Total Principal Outstanding 2,42,40,126
ADD: Interest @ 15% P.A. After 45 days of respective invoice upto 30.09.2021 2,63,71,281
ADD: Old Interest @ 15% P.A. for delayed payments upto 30.09.2021 75,97,869
Total Overdue Outstanding as on 30.09.2021 5,82,09,276
From the perusal of the Statement of Computation of Dues (Annexure 'G') reproduced above, it is observed that the first invoice was raised by the Applicant on 20.05.2013 and the last invoice dated 26.12.2015 became due and payable on 09.02.2016.
Further, the Applicant, vide its Additional Affidavit dated 17.05.2022, has pleaded the following :
i)Payment of an amount of Rs.2,11,602/- was received from the Respondent on 29.12.2015.
ii) Payments of Rs.73,167/-, Rs. 60,524, Rs.6,082/- and Rs.46,216/- were received from the Respondent on 18.01.2016.
iii) Payment of Rs.5,00,000/- was received through RTGS from the Respondent on 25.04.2018.
iv) Further, subsequent payments of Rs.2,50,000/-, Rs.2,50,000/-, Rs.2,50,000/-, and Rs.3,00,000/- were received from the Respondent on 16.05.2019.
Applicant has also placed on record its Bank Statement in support of the receipt of the said part payments against its dues from the Respondent.
From the details in para 13 above, it is observed that the part payments were received by the Applicant between 29.12.2015 and 16.05.2019. The First invoice became due and payable on 04.07.2013. Therefore, the payment made by the Respondent on 29.12.2015 shall extend the limitation till 28.12.2018. Similarly, the payments made by the Respondent to the Applicant on 25.04.2018, then again on 16.05.2019 shall extend the period of limitation till 15.05.2022.
Since the present Petition is filed on 21.02.2022, which is prior to the expiry of limitation period i.e., 15.05.2022, we are of the view that the present Petition is within the period of Limitation.
As already observed, since the Respondent neither appeared nor filed any reply, it was proceeded ex-parte. In the circumstances, it is presumed it has nothing to say in the matter. As regards merits of the case, the Applicant has been able to establish the default committed by the Respondent.
In the circumstances, the Petition filed under Section 9 fulfills all the requirements of law. Therefore, the petition is admitted in terms of Section 9(5) of the IBC. Accordingly, the CIRP is initiated and moratorium is declared in terms of Section 14 of the Code. As a necessary consequence of the moratorium in terms of Section 14(1) (a), (b), (c) & (d), the following prohibitions are imposed, which must be followed by all and sundry:
“(a)The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;
(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.”
As proposed by the Operational Creditor, this Bench appoints Mr. Harish Taneja (Email id: [email protected]) as IRP having Registration No. IBBI/IPA-002/IP-P00088/2017-18/10229 subject to the condition that no disciplinary proceedings are pending against the IRP so named and disclosures as required under IBBI Regulations, 2016 are made by him within a period of one week from this Order. This Adjudicating Authority orders that :
“Mr. Harish Taneja as IRP having Registration No. IBBI/IPA-002/IP-P00088/2017-18/10229, is directed to take charge of the CIRP of the Corporate Debtor with immediate effect. The Court Officer will inform the IRP so appointed by all modes.”
The IRP is directed to take the steps as mandated under the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC, 2016.
The Operational Creditor is directed to deposit Rs. 2,00,000/- (Two Lakh) only with the IRP to meet the immediate expenses. The amount, however, will be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Financial Creditor.
A copy of this Order shall immediately be communicated by the Registry/Court Officer to the Operational Creditor, the Corporate Debtor and the IRP mentioned above. In addition, a copy of the Order shall also be forwarded by the Registry/Court Officer to the IBBI for their records.
