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2024 Supreme(Online)(NCLT) 2566
NATIONAL COMPANY LAW TRIBUNAL
SHRI MAHENDRA KHANDELWAL, SHRI DR. SANJEEV RANJAN, JJ
GAURAV GUPTA SOLE PROPRIETOR OF AMBIKA TRADERS – Appellant
Versus
M/S J V INDUSTRIES PRIVATE LIMITED – Respondent
CP IB NO. 382/(ND)/2023
For the Applicant: Mr. Neeraj Gupta, Ms. Divya Gattani
For the Respondent: Mr. Agrim Arora
The application for insolvency dismissal was based on finding no bona fide pre-existing dispute by the corporate debtor prior to the demand notice.
Headnote:(A) Insolvency and Bankruptcy Code, 2016 - Section 9 - Operational Debt - Initiation of Corporate Insolvency Resolution Process for non-payment of dues. The Operational Creditor claims dues amounting to Rs. 10,34,58,416.83, but the Corporate Debtor contends a pre-existing dispute was raised only post-demand notice. Findings reveal that the Corporate Debtor did not establish a bona fide pre-existing dispute as claimed. The application for Insolvency Resolution Process was therefore dismissed. (Paras 4-19)
(B) Pre-existing Dispute - Definition and Relevance - The corporate debtor must demonstrate the existence of a dispute prior to issuance of demand notice for non-payment of the operational debt. It was determined that the operational creditor's claim of dues was valid despite the Corporate Debtor’s assertion of disputes that arose post-demand notice.
| Table of Content |
|---|
| 1. filing of corporate insolvency resolution process under section 9. (Para 1 , 2 , 3) |
| 2. claim of operational debt amount and the invocation of insolvency proceedings. (Para 4 , 14) |
| 3. contention of pre-existing disputes and their implications on the proceedings. (Para 5 , 15) |
| 4. jurisdiction and examination of the existence of operational debt and legal standing. (Para 6 , 7 , 8) |
| 5. petition dismissal based on established findings of pre-existing disputes. (Para 18 , 19) |
ORDER
PER: MAHENDRA KHANDELWAL, MEMBER (JUDICIAL)
1. This is a Company Petition filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (‘the Code’) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by Mr. Gaurav Gupta, Sole Proprietor of M/s Ambika Traders (‘Operational Creditor’) for initiation of Corporate Insolvency Resolution Process (‘CIRP’) against M/s J V Industries Private Limited (‘Corporate Debtor’)
2. Ambika Traders (Operational Creditor) is a Sole Proprietorship Firm owned by Mr. Gaurav Gupta, having its office at 5957/58, Basti Harphool Singh, Sadar Bazar, Delhi-110006 which is engaged in the supply/sale of Copper Scrap, Copper Wire, Copper Wire Scrap and Copper Ignots. M/s J V Industries Private Limited (Corporate Debtor) is a company registered under the Companies Act, 1956 [CIN- U74899DL1994PTC057081], having its registered office at 9/104 G/F KH NO. 2376/18768/2 60, Feet Road Vishwas Nagar, Near Shastri Gali, Shahdara, Delhi, India, 110032. The Corporate Debtor has Authorized Share Capital of Rs. 4,50,00,000/- (Four Crore Fifty Lakh) and Paid-Up Share Capital of Rs 3,95,43,110/- (Three Crore Ninety-Five Lakhs Forty-Three Thousand One Hundred Ten)
3. The present Petition was filed on 21.06.2023 before this Adjudicating Authority by Mr. Gaurav Gupta, Sole Proprietor of M/s Abmika Traders to initiate Corporate Insolvency Resolution Process (“CIRP”) proceedings under Section 9 of the Insolvency and Bankruptcy Code, 2016 (“Code’). The total amount of Operational Debt claimed is Rs. 10,34,58,416.83 (Rupees Ten Crore Thirty- Four Lakhs Fifty-Eight Thousand Four Hundred Sixteen and Eighty-Three Paise Only) including Interest. The date of default is 02.08.2021.
4. The details of transactions leading to the filing of this Application as averred by the Operational Creditor/Applicant in the application are as follows:
a) That the Operational Creditor i.e., Ambika Traders deals in supply/sale of Copper Scrap, Copper Wire, Copper Wire Scrap and Copper Ignots. The Corporate Debtor i.e., M/s JV Industries Pvt. Ltd. engaged in the business of producing wires and cables, approached the Applicant in January 2020 and had placed oral purchase orders with the Applicant from time to time for supply of copper scrap. The Supply was made to their shipping address at E-530-531, RIICO Industrial Area, Chopanki, Bhiwadi, Rajasthan. Since 16.01.2021, the Corporate Debtor regularly issued invoices and raised E- way Bills to the Corporate Debtor against the Supplies. Accordingly, the Corporate Debtor has to make payments within 15 days from the date of invoices and regular payments were made by the Corporate Debtor.
Therefore, the Applicant maintained running account of the CD.
b) But after 02.08.2021, no further payments were made by the Corporate Debtor. The Applicant has provided various extensions to the Corporate Debtor for making the outstanding payments nevertheless payments were made by the Corporate Debtor.
c) Thus, the Applicant was constrained to issue a Demand Notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 read with the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, to the Corporate Debtor on 14.11.2022 calling upon the Corporate Debtor to pay unconditionally the unpaid operational dues of Rs. 7,78,50,827/-.
d) The Corporate Debtor has sent a sham reply dated 23.11.2022 to Section 8 Demand notice vide Form 3 and failed to make payment. Th
