Superwave Communication And Infrasolution Private Limited vs Rayways Infra Projects Private Limited

The Applicant is engaged in the business of construction and work related to maintenance of the highways and toll plazas in all parts of India. The Corporate Debtor is also engaged in a similar business.

Pursuant to the Project Work order No. 0125-2023 dated 12.10.2023 issued by the Corporate Debtor, the Operational Creditor was awarded work relating to improvement and construction of Ahmednagar Bypass project in the State of Maharashtra.

Thereafter, various goods were supplied by the Operational creditor to the Corporate Debtor at its project site against invoices and the work was executed by the Operational Creditor by installing the goods at the project site as per satisfaction of the Corporate Debtor. The details of the invoices raised on the Corporate Debtor and the details of the part payments as follows:

The Goods were shipped to one GHV India Pvt. Ltd, on account of the Corporate Debtor. The same is evident from the invoices attached as Annexure F to the application. The receiving in invoices was given by GHV India Pvt. Ltd.

As per Clause 9 of the Work order the Payment was required to be made in the following manner:

After Delivery of Material: 50% of Contract Value to be paid by Corporate Debtor to SCAIPL after receiving material at site.

After Execution: 50% of contract value to be paid by Corporate Debtor to SCAIPL immediately after successful completion of installation, testing and approval of ordered items.

Further, as per the clause 2.4 of the work order, the Corporate Debtor was obligated to make payment on a monthly basis i.e., within 30 days from the date of RA Bills (Running Account Bills).

Despite delivery and installation goods, the Corporate Debtor failed to make the payments. Since the Corporate Debtor was not making the payments, the Operational Creditor was compelled to stop supply of further goods in terms of Section 46(2) and 48 of the Sales of Goods Act, 1930 i.e., rights of an unpaid seller.

Since no payment was received by the Operational Creditor, therefore, it was compelled to issue a legal notice dated 05.03.2024. One corrigendum dated 12.04.2024 was also issued to the legal notice dated 05.03.2024.

Thereafter, the Operational Creditor issued Statutory Demand Notice under Section 8 of the code dated 16.04.2024 which was sent vide speed post on 19.04.2024 at registered office and branch office of the Corporate Debtor and vide email on 19.04.2024 at rayways.infrasys@gmail.com, mihtikirangulati21@gmail.com. The Corporate Debtor vide its email dated 19.04.2024 sent vide id rayways.infrasys@gmail.com, had acknowledged that it had received the Demand Notice and it will revert within 15 days. Further, the abovementioned Id is the email mentioned in the master data of the Corporate Debtor maintained by MCA. The Corporate Debtor had avoided the service vide speed post, as the speed post issued at the registered office with the remarks, “Lene se Inkaar” which means Delivery refused.

Despite the lapse of statutory period of 10 days and the time sought in the email dated 19.04.2024 i.e, 15 days, the Corporate Debtor had neither made the payment nor it had replied to the demand notice issued under Section 8 of code.

As per part IV of the petition, the total amount of Debt is Rs.1,22,33,029/- excluding interest. The date of default is 04.01.2024

The Petitioner has not made compliance of Section 8(1) of IBC before filing this Petition as no demand notice was delivered to the Corporate Debtor. The Operational Creditor itself admitted that Demand Notice sent to the Corporate Debtor was received back undelivered. The remark of the postal authorities on the photocopy of the envelope is as "कोई जानकारी नहीं". Even the Petitioner in order to mislead this Tribunal in this regard, has deliberately neither attached the Original Envelope which was returned undelivered nor attached a copy of delivery status Report after downloading from the Official Government Website of Bhartiya Postal Department i.e. "www.indiapost.gov.in".

Admittedly the Operational Creditor has not complied with Regulation 2B of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations 2016, which is compulsorily required to be fulfilled. The Operational Creditor has not issued e-ways bills against Invoice Nos. SC/TI/2324/203, SC/TI/2324/231, SC/TI/2324/232 and SC/TI/2324/264 , which are part of the petition as Annexure F.

Mr. Anshuman Singh is not authorised by the Board of Directors of the Operational Creditor to file this Petition against the Corporate Debtor before this Court. Mr. Anshuman Singh signed and filed this Petition maliciously in order to take personal revenge from CEO of the Corporate Debtor as there was neither any debt, which was due and payable to the operational creditor.

On merits, while admitting issuance of the Work Order dated 12.10.2023, the Operational Creditor failed to complete the project within the stipulated period of 45 days and is liable for delay and penalty. The petitioner failed to complete the project as per condition no. 11. Even the petitioner deliberately misrepresented the condition no. 9 of the work order, which are reproduced herein below:

The Operational Creditor concealed the material facts from this Court about the issuance of credit notes and lifting of material back by the Petitioner against the alleged invoices long back

Due to quality issues in the material supplied were not up to the stipulated standards, the Operational creditor lifted the material back and issued Credit Notes against the above said all four invoices which are part of Petition vide Credit Note No. SC/CN/2324/032, SC/CN/2324/033, SC/CN/2324/034 & SC/CN/2324/035 all dated 31.12.2023 and did not deposit the GST on all the said four alleged invoices. The alleged Invoices, which are part of the petition, are neither due nor payable and detail of credit notes issued by the corporate debtor, which has been deliberately concealed by the Corporate Debtor, are as per below:

Rather it is the Operational Creditor itself, who is liable to make the payment of Rs. 2,08,00,000/- including advance payment of Rs. 60,00,000/- to the Corporate Debtor due to its failure to complete the project as per agreed terms and conditions of the Work Order.

Mr. Anshuman Singh, the person who has unauthorisedly signed the petition is also one of the Directors of the Corporate Debtor, which has managed the demand notice through email on behalf of the corporate debtor. Copy of the Master Data of the Corporate Debtor and Operational Creditor showing Mr. Anshuman Singh as one of the directors in both the companies is attached as Annexure R-2 of the reply.

The Operational Creditor also concealed the material facts from this Court about the pre-existing dispute.

There is a pre-existing dispute between the Corporate Debtor and Operational Creditor relating to alleged claim which is subject matter of the petition as the operational creditor had issued the credit notes and lifted the material/goods from the site. Even the Petitioner did not deposit GST against the alleged invoices. The Petitioner took the benefits of issued credit notes in its GST Returns.

Admittedly the Operational Creditor failed to complete the work as per agreed terms of the Work Order. The operational creditor failed to meet the agreed guidelines. Even the Corporate Debtor had given extra time of 10 days to the petitioner to complete the project and also conveyed warning of terminating the project, in case of no completion. Due to non-completion of the project as per work contract, work allotted to the Corporate Debtor was cancelled and consequently the work contract was cancelled. Copy of correspondence exchanged in this regard are attached as Annexure R-3 to the reply.

Mr. Anshuman Singh, unauthorized person, who has signed the petition has already filed a complaint dated 14.03.2024 about the alleged debt which is subject matter of the petition. The said complaint is pending for investigation before the Economic Offence Wing, Gurugram. Copy of the Notice No. 782 dated 18.03.2024 received from Economic Offence Wing-1, Gurugram along with a copy of Complaint dated 14.03.2019 filed by the Corporate Debtor are enclosed as Annexure R-4 of the reply.

Mr. Anshuman Singh, has filed this petition due to his personal reasons in order to defame Ms. Kiran Gulati, CEO of the Corporate Debtor and her family. Moreover, Mr. Anshuman Singh was a good friend of CEO of the Corporate Debtor, who wanted some undue favor from her and when the CEO started resisting his demands, Mr. Anshuman Singh started blackmailing the CEO and her family and threatening that Mr. Anshuman Singh will ruin life of CEO Ms. Kiran Gulati. Reply dated 20.03.2024 filed by Ms. Kiran Gulati, CEO of the Corporate Debtor to the above said complaint of the petitioner is attached as Annexure R-5 of the reply.

The Respondent has relied on the Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited- 2017 1 SCC Online SC 353 and Hon'ble National Company Law Appellate Tribunal, New Delhi in the matter of M/s Sumilon Polyester Pvt. Ltd. Versus M/s Parikh Packaging Pvt. Ltd.[COMPANY APPEAL (AT) (Insolvency) No. 695 of 2020].

The dispute between the Parties cannot be decided by this Adjudicating Authority under the Code. Proceedings before NCLT are summary in nature and adversarial evidence cannot be led and appraised by this Tribunal. The aforesaid summary jurisdiction of the NCLT has been affirmed in Rakesh Kumar V. Flourish Paper & Chemicals Ltd. (Company Appeal (AT)(Insolvency) No. 1161 of 2022), the relevant portion of the said judgement is reproduced as under -

Even for arguendo and not admitted, the operational creditor can claim only 50% i.e. 90,45,271/- of the total project value (i.e. 1,80,90,542/-as per Clause No. 10(a) at page no. 93 of the petition) after receiving material at site. Admittedly the operational creditor has received an advance of Rs. 60,00,000/- from the corporate debtor. Hence as per averments made by the operational creditor, it can only claim default of Rs. 30,45,271/-which amount is less than the threshold limit of Rs. 1.00 crore as per provisions of Section 4 of IBC. The operational creditor cannot claim 50% of the total project value, admittedly which is yet to be completed. The remaining amount i.e. i.e. 90,45,271/- (50% of the project value) as per Clause No. 9(B) of the work order was to be payable immediately after successful completion of installation, testing and approval of ordered items.

The Petitioner has come with unclean hands and its Petition is not maintainable. Further the demand notice issued under Section 8 of IBC was admittedly never delivered to the corporate debtor and demand notice through email was managed by Mr. Anshuman Singh as he was also one of the directors of the Corporate Debtor.

The applicants have denied the averments made by the Corporate debtor which are contrary to the submissions made by the applicant.

Regarding service of demand notice, the Operational Creditor is claiming service via Email. The Demand notice was served at the Registered email of the Corporate Debtor mentioned in its master data i.e., rayways.infrasys@gmail.com. The Corporate Debtor, in its reply to the said email, acknowledged receipt of the demand notice and stated that it would respond through its counsel. The copy of the said email forms part of the Annexure I of the petition. The demand notice was also served upon Ms. Kiran Gulati, CEO of the Corporate Debtor, at her email address. As per Rule 5(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, service upon a Key Managerial Personnel through email is permissible, and the CEO falls within the definition of KMP under Section 2(51) of the Companies Act, 2013. It is thus contended that the requirements of Section 8(1) of the Code stand duly complied with. The demand notice was properly served at multiple fronts: at the registered office (which was refused), at the official email of the Corporate Debtor, and to the CEO of the Corporate Debtor. A copy of the email is at Page 74, of the Petition at Annexure D.

With regard to authorisation, the present petition has been duly filed pursuant to a valid Board Resolution authorizing Mr. Anshuman Singh to initiate proceedings. Mr. Anshuman Singh had resigned from the Corporate Debtor on 17.11.2023, and his resignation took effect from the said date in terms of Section 168 of the Companies Act, 2013. Form DIR-11 was duly filed with the Registrar of Companies. The allegation that he continued to manage the affairs of the Corporate Debtor is denied.

With respect to e-way bills and delivery of goods, the goods were supplied on behalf of the Corporate Debtor to GHV India Pvt. Ltd., which was the designated recipient at the project site. Accordingly, the e-way bills reflected the name of GHV India Pvt. Ltd. The invoices and delivery challans bear acknowledgment of receipt by GHV India Pvt. Ltd. on behalf of the Corporate Debtor. The Corporate Debtor has not denied the receipt of goods. The goods were supplied by the sister concern of the Operational Creditor Company namely Scipl Intelligent Transportation System Private Limited.

With regard to credit notes and GST, the credit notes relied upon by the Corporate Debtor were subsequently cancelled and are reflected as such in the GST returns. The material was never lifted and continues to remain installed at the project site. The credit notes were initially raised due to non-payment, with an intention to lift the material, however, upon assurance of payment by the Corporate Debtor, the same were cancelled. The GST liability has been duly discharged in respect of the invoices forming part of the claim. The Credit notes were cancelled in December 2024 and the same are reflected in column 9C of GSTR-3B of February 2024.

With regard to the payment of ₹60,00,000/-, the same was made as part payment against the invoices raised and not as an advance. The payment was made after issuance of invoices and is duly reflected in the ledger account. The balance amount remains unpaid.

With regard to the allegation of delay and penalty, no such claim for penalty or damages was ever raised by the Corporate Debtor prior to issuance of the demand notice. The Operational Creditor had repeatedly requested payment through emails dated 16.12.2023 and 03.02.2024, and had informed that further work would be carried out only upon receipt of dues. The work could not be completed on account of non-payment by the Corporate Debtor. Hon’ble NCLAT in Deepak Gupta Vs Ved Contracts Pvt. Ltd. & Ors, Company Appeal (AT) (Insolvency) 1262 of 2019 dated 19.11.2019 has held that Counter claims cannot be decided in Section 9 Application and rejected contention of the Appellant suspended board that CIRP should have been triggered as there was counter claim of the Corporate Debtor.

With regard to the threshold objection, the Operational Creditor supplied and installed goods in terms of the Work Order and raised invoices, out of which only part payment has been made. The amount claimed in default is above the threshold prescribed under Section 4 of the Code. Furthermore, under Clause 2.4, the Corporate Debtor was independently obliged to make payment on a monthly basis within 30 days from the date of RA Bills, which obligation remains unmet despite repeated demands by emails dated 16.12.2023 and 03.02.2024. The payment of ₹60,00,000 made on 14.11.2023 was merely a part payment towards the total invoiced amount of ₹1,22,33,029, as reflected in the ledger and petition. After adjusting this part payment, the remaining liability of ₹1,22,33,029 still stood unpaid and was claimed in the petition, which is clearly above the ₹1 crore threshold required under Section 4 of the code.

With regard to the existence of dispute, it is submitted that there was no pre-existing dispute between the parties prior to issuance of the demand notice. The credit notes were cancelled, the material remains at site, and no contemporaneous record exists showing any dispute raised by the Corporate Debtor. The work could not be completed due to non-payment, and the Operational Creditor exercised its right to stop further supply under the provisions of the Sale of Goods Act, 1930.

With regard to the complaint before the Economic Offences Wing, it is submitted that the same was filed by the Operational Creditor on account of non-payment and retention of material by the Corporate Debtor. It is stated that the said complaint does not pertain to any dispute raised by the Corporate Debtor in respect of the operational debt.

No formal communication of termination of the Work Order was ever issued by the Corporate Debtor to the Operational Creditor, and the communications relied upon pertain to a third party. In the absence of any termination, the Work Order continued to subsist.

The refusal to carry out further work was on account of non-payment and was in exercise of the statutory rights of an unpaid seller under the Sale of Goods Act, 1930 and exercise of statutory right cannot be considered as dispute.

The Corporate Debtor Rayways Infra Projects Private Limited is admitted in the Corporate Insolvency Resolution Process under Section 9 of the Insolvency and Bankruptcy Code, 2016.

The moratorium under section 14 of the Insolvency and Bankruptcy Code, 2016 is declared for prohibiting all of the following in terms of Section 14(1) of the said Code.

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;

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

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 the Enforcement of Security Interest Act, 2002;

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

the Order of moratorium shall have effect from the date of this Order till the completion of the Corporate Insolvency Resolution Process or until this Adjudicating Authority approves the Resolution Plan under sub-section (1) of Section 31 or passes an order for the liquidation of the Corporate Debtor Company under Section 33 of the Insolvency & Bankruptcy Code, 2016, as the case may be.

Mr. Atul Deep Gupta, having Registration Number: IBBI/IPA-003/IPA-ICAI-N-00479/2025-2026/14574 Email -atuldeepgupta@gmail.com and Mobile No: 9586100081 is appointed to act as Interim Resolution Professional (IRP) under Section 13(1)(c) of the Insolvency and Bankruptcy Code, 2016. He shall conduct the Corporate Insolvency Resolution Process as per the provisions of the Insolvency and Bankruptcy Code, 2016, r.w. Rules and Regulations made thereunder. The IRP shall make a public announcement of the initiation of the Corporate Insolvency Resolution Process and call for submission of claims under Section 15 as required by Section 13(1) (b) of the Insolvency and Bankruptcy Code, 2016.

the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended, or interrupted during the moratorium period. The Corporate Debtor is to provide effective assistance to the IRP as and when it takes charge of the assets and management of the Corporate Debtor.

The IRP shall perform all its functions as contemplated, inter alia, by sections 17, 18, 20 & 21 of the Insolvency and Bankruptcy Code, 2016. It is further made clear that all personnel connected with Corporate Debtor, its Promoter, or any other person associated with the management of the Corporate Debtor are under legal obligation under Section 19 of the Insolvency and Bankruptcy Code, 2016, to extend every assistance and co-operation to the IRP. Where any personnel of the Corporate Debtor, its Promoter, or any other person, is required to assist or co-operate with the IRP, do not assist or co-operate, the IRP is at liberty to make an appropriate Application to this Adjudicating Authority with a prayer for passing an appropriate Order.

The IRP shall be under a duty to protect and preserve the value of the property of the ‘Corporate Debtor Company’ and manage the operations of the Corporate Debtor Company as a going concern as a part of the obligation imposed by Section 20 of the Insolvency and Bankruptcy Code, 2016.

The Operational Creditor is directed to pay an advance of Rs. 3,00,000/-(Rupees Three lakh only) to the IRP within two weeks from the date of receipt of this Order for smooth conduct of Corporate Insolvency Resolution Process and IRP to file proof of receipt of such amount before the Adjudicating Authority along with First Progress Report. Subsequently, the IRP may raise further demands for Interim funds, which shall be provided as per the Rules.

The IRP shall also serve a copy of this Order to the various departments, such as Income Tax, GST, State Trade Tax, and Provident Fund, etc. those who are likely to have their claim against Corporate Debtor as well as to the trade unions/employees associations so that they are timely informed about the initiation of CIRP against the Corporate Debtor.

The commencement of the Corporate Insolvency Resolution process shall be effective from the date of this Order.