THE NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH COURT- III IB-358/ND/2021 U/S. 9 of the IBC, 2016 and Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority), Rule, 2016 IN THE MATTER OF:

AIREN METALS PRIVATE LIMITED Registered Office: -

G-750, Road No. 9 F2, V.K.I.A Jaipur, Rajasthan - 302013 ……Operational Creditor Versus PME POWER SOLUTIONS (INDIA) LIMITED Registered Office: -

F-20, F/F Sheikh Sarai, Near APJ School, New Delhi – 110017 …… Corporate Debtor Delivered on: - 19.12.2023 Coram:

Shri Bachu Venkat Balaram Das Hon’ble Member (Judicial)

Shri Atul Chaturvedi Hon’ble Member (Technical)

Appearances:

Operational Creditor : Mr. Rajesh Kumar Gautam, Advocate Corporate Debtor : Mr. Sanjay Jain, Advocate

O R D E R

Per: BACHU VENKAT BALARAM DAS, MEMBER (JUDICIAL)

1. The present application has been filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred as ‘IBC, 2016’) R/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The Operational Creditor, Airen Metals Private Limited Company is seeking an Order to initiate Corporate Insolvency Resolution Process (hereinafter referred as ‘CIRP’) against the Corporate Debtor viz., M/s. PME Powers Solutions (India) Limited, to declare moratorium and to appoint Interim Resolution Professional (hereinafter referred as ‘IRP’). The Corporate debtor is registered with ROC, NCT of Delhi & Haryana and is therefore, within the jurisdiction of this Adjudicating Authority.

2. The Operational Creditor/Petitioner has averred as follows: -

a) It is submitted that, the Applicant company is engaged in the business of non-ferrous metals like copper, aluminium wires, strips and all types of insulating wires. The Corporate Debtor placed an order for different types of CC copper wires/rod and insulating copper strips and in return the Operational Creditor supplied the required goods. The Operational Creditor raised various invoices and debit notes for Rs. 28,08,57,163/-.

b) It is further submitted that, from 03.03.2015, the Corporate Debtor failed to make payments on time. The Operational Creditor received some part payment from the Corporate Debtor and after adjusting the partial payment received by the Operational Creditor the outstanding amount is Rs. 18,74,72,208/- pending amount is yet to be paid by the Corporate Debtor. The Operational Creditor has received last payment from the Corporate Debtor on 03.06.2017. That Operational Creditor had been regularly following up with the Corporate Debtor over calls and emails for making the outstanding payment however no attention was paid to the request of the Operational Creditor.

c) It is further averred that, the Operational Creditor herein issued a Demand Notice dated 03.03.2021 for Rs. 28,08,57,163/- (Rupees Twenty Eight Crore Eight Lakh Fifty Seven Thousand One Hundred Sixty Three only) to the Corporate Debtor under the provisions of Section – 8 of the Insolvency and Bankruptcy Code, 2016, through speed post and email dated 05.03.2021 which was duly served upon the Corporate Debtor. The Corporate Debtor has not replied to the demand notice.

3. Per Contra, the Corporate Debtor has raised following contentions: -

I. The Operational Creditor has failed to serve the Section – 8 notice to the Corporate Debtor. The Demand Notice dated 03.03.2021 was not served upon the Corporate Debtor or its Directors. As per Rule 5 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 which enshrine the mandatory conditions regarding the service of demand notice on the Corporate Debtor but the Operational Creditor failed to comply with the said provision of law.

II. There are pre-existing disputes between the parties, which the Operational Creditor seeks to side-step by filing the instant Application under Section – 9 of the code. It is further averred by the Corporate Debtor that, the existence of pre-existing dispute is evident from a series of emails sent by Corpora