"Pe cemeerrers (292 eta sbasseecsea ease c wsccereserreete: eeeeey Date of Presentation of application for Copy..2bf 2.8. No. of Pages..c) acsurecuseanneessensnencansorteetecsees Copying Fee. [ie soceeee _ Registration & Postage Fee.. Total Fu. ok seveneeercettcnneeneee BEFORE THE NATIONAL COMPANY LAW TASKBAR Lint & PRINCIPAL BEN CH, NEW DELEMate of Preparation of Copy.2.0)02.112 Sate of Delivery of Copy... £1. OBL. 8 iv Company Petition no. (1B)-238 (PB)/2017 ppwit omneltcyor] AR/Court-Oficer— National Company Law Tribun:' New Delhi Under Section 9 of the Insolvency and Bankruptey Code, 2016 In the matter of: Siddhi Interiors Private Limited Applicant Versus Amarpali Zodiac Developers Private Limited ..Respondent Judgment delivered on: 16/2/2048 CORAM: CHIEF JUSTICE (Rtd.) M.M. KUMAR How ble President MS. DEEPA KRISHAN Hon’ble Member (T) For Applicant: Mr. R.P Aggarwal, Advocate. Sa ar ny Lae he ae For Respodent: Mr. Praveen Kapoor, Advocate Company Petition ne. (4B)-238 (PB)2017 ORDER Per: DEEPA KRISHAN, MEMBER (T) yo Company Petition no. (1B)-238 (PB)/2017 This is an application filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity ‘the Code’) read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 (for brevity ‘the Rules’) with a prayer for initiation of Corporate Insolvency process in respect of Respondent corporate debtor. The respondent is a company incorporated under the provisions of the Companies Act, 1956, having its registered office at 307 3\" floor Nippun Tower Community Centre Karkardooma Delhi-1 10092. It is the case of the applicant that the applicant is a supplier of readymade modular kitchen and wardrobes woodwork carcase, wardrobe woodwork shutter, wardrobe handles and hinges, modular kitchen woodwork carcase, modular woodwork kitchen shutter etc. in the market and the respondent is a company engaged in the business of development . of real estate projects and as such has been developing the Group Housing Project “Amrapali Zodiac” at GH-03, Sector-120, Noida, U.P. As the corporate debtor required supply of different fixtures to be installed into the kitchen of different flats of said project; the respondent approached applicant for supply of readymade modular kitchen and - 5. wardrobes handles and hinges, modular kitchen woodwork carcase, modular woodwork kitchen shutter etc. for its above said project. . It is also the case of applicant that it supplied the materials as per the requirement of respondent and the materials were always supplied on or before the time and thereafter the applicant raised the invoices and there has never been any objection or complaint of any kind what so ever: against the goods/material supplied by the applicant. Copies of all purchase orders and copies of all due invoices are placed on record. . Further it is submitted that when the due amount got accumulated for a long period without any payment being made by the respondent, the applicant stopped supply of materials in the month of September, 2015 and requested the respondent to clear all pending bills. The respondent then reconciled the account of the applicant and acknowledged the outstanding ammount of Rs. 4,19,60,237.60/- (Rupees Four Crores Ninteen Lakhs Sixty Thousand Two Hundred Thirty Seven and Paise Sixty Only) payable to applicant. Despite reconciliation and acknowledgement of the due amount, the respondent failed to make payment of due amount and bought only time from the operational creditor. A copy of reconciled account statement has been placed on. record. {tis submitted, when the respondent was not making payment of due amount despite repeated requests, the applicant served a “Statutory 3 Company Petition mo. (1B)-238 (PB)/2017 a’ Company Petition no. (IB)-238 (PB)/2017 winding up notice” dated 20.03.2017 in terms of section 434 (1) (a) of the Companies Act 1956 to the respondent to make payment of due amount but the respondent neither responded to the winding up notice nor made the payment of due amount. . Further the applicant issued notice under Section 8 of the Code, to the respondent at its latest and present registered office on Form 3 of the Insolvency and Bankruptey (Application to Adjudicating Authority) Rules, 2016 by Speed Post on 18.05.2017. A certificate dated 24.07.2017 issued by the Corporation Bank, has been placed on record in which it has been confirmed that any amount has not been credited from respondent since October 2014 in the account _ of the applicant. In addition, the applicant has filed relevant bank account statements. An affidavit dated 21.07.2017 has also been filed by the operational creditor affirming that in respect of the amount claimed or any part thereof, the operational creditor has not nor has any person, on its behalf had received any manner of security. Further it has been confirmed that no notice is given by the corporate debtor raising any dispute in relation to the unpaid operational debt. Respondent has filed its reply and raised certain objection against the present application. It is the case of the respondent that a demand of Rs. 4 4,19,60,237.60/- GRupees Four Crores nineteen lakhs sixty thousand two hundred and thirty seven and paise sixty only) being raised in the present petition is false and frivolous as per alleged invoices/statement of invoices and payments for supply of materials alleged to be supplied to the respondent. it has been contended that the said amount is not due and payable by the respondent to the applicant as the said demand of the applicant is frivolous and arbitrary. It is submitted that the goods alleged to be having been supplied were defective, damaged and deficient. 10. Further it has been submitted that there are disputes exist Between the parties prior to filing of the present application. Additionally, it has been stated that since the respondent shared a healthy relationship with the applicant therefore, the respondent did not bring up the disputes in writing. Li. Heard the Parties and peruse the case record. 12. Needless to say, that the onus to prove the existence of the alleged defects in the goods supplied lies upon the respondent. When a person is bound to prove the existence of any fact, the burden of proof lies on that person. It is pertinent to note here that the applicant has placed on record a reconciled statement alongwith the application by stating that the respondent itself had reconciled the account of the applicant and acknowledged the outstanding amount of Rs. 4,19,60,237.60/- (Rupees 5 Company Petition no. (1B)-238 (PB)/2017 . Company Petition no. (1B)-238 (PB)/2017 Four Crores Ninteen Lakhs Sixty Thousand Two Hundred Thirty-Seven and Paise Sixty Only) payable to applicant. Besides huge dues in crores are outstanding and there is no documentary evidence on record to show that any complaint was ever made by the respondent regarding defects in the material supplied. Once huge stake is involved and the alleged oral communications have been categorically denied, heavy onus lies on : the respondents to prove that there is no outstanding dues to be paid by the respondent to the applicant. Therefore, without any specific details, material particulars and evidence the fact of existence of a dispute cannot be sustained. 13. Even though huge financial transactions are involved between legal entities, absolutely no document, reflecting the transaction in question, have been placed. Respondents have taken the stand that there is. existence of dispute with respect to the debt and demand in question. There has been no communication of dispute to the applicant about the quality of goods supplied. No damage/counter claim has been lodged. No arbitration and/or legal proceedings in the matter are pending. When there is absolutely no document or particulars to support the claim of existence of dispute, the mere claim of dispute that rose in the reply and | in the pleadings in defense can be termed as vague and motivated to evade the liability. y Ww Company Petition no. (FB)-238 (PB)2017 14. In view of the above, we are satisfied that the present application is complete and the Operational Creditor is entitled to claim its dues towards the goods supplied to the corporate debtor and there has been a default in payment of the operational debt. Therefore, on fulfilment of the requirements of section 9 (5) (i) (a) to (e) of the Code, the present application is admitted. 15. A moratorium in terms of section 14 of the Code is being issued prohibiting the following: ° 16, 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 jn respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. It is further directed that: (a) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period, (6) The provisions of sub-section (1) of section 14 of the Code shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. 17. The Insolvency and Bankruptcy Board of India vide its letter dated 01.01.2018 has recommended a panel of Insolvency Professionals for appointment as Insolvency Resolution Professional in compliance with Section 16 (3) (a) of the Code in order to cut delay. The list of recommended Insolvency Professionals provides instant solution to the Adjudicating Authority to pick up the name and make appointment. It helps in meeting the time line given in the Code and the unnecessary time wasted firstly in asking the Insolvency and Bankruptcy Board of India to recommend the name and then to appoint such Interim. Resolution Professional by Adjudicating Authority. Accordingly, we appoint Mr. Anil Kumar email id anikumar@aaainsolvency.com (Mobile No.9873 121883) as an Interim Resolution Professional. His registration number js IBBI/IPA00 I /IP-P00144/2017-18/10308. The aforesaid Interim Resolution Professional has no disciplinary ye x proceeding pending against him nor anything else has been pointed out with regard to his antecedents. The Interim Resolution Professional has 8 Company Petition no. (1B)-238 (PB)/2017 ea =e 882 Dc asusueaseensun aacervetans 6 #04 egae geeneso neg Date of Presentation 3f application for Copy..d 2bLe. do. LB. Blo. OF Pages..itecssececsonevecenen evento tant Copying Fee...24. crroeeoecuoncosanstrennnenvessessensee filed necessary declaration in accor, dance WiHhihedRBl Reza dons: ran we Potal ©... Re OS [crrrceveerconmseren ee coe the provisions of the Code. Dare of Receipt & _ ne ord of COPY neennnnar 2 i is di 9 of Preparation of Copy. ie 18. The applicant is directed to pay a sum ab ‘uRSs wor badges. 10. 4422/08 worht_aGia * Interim Resolution Professional to meet out the expenses to per for ty: the bBID R/ i i i i atiogal Company Law fears function assigned to him/her in accordance to\" “Reg lai tion 6 Insolvency and Bankruptcy Board of India Unsolvency Resolution Process for corporate person) Regulations, 2016, 19. The order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process as per Sub-Section (4) of section 14 of the Code. Let the copy of the order be supplied to the parties including IRP. MM. KUMAR 16.02- 20{8 PRESIDENT ‘DEEPA KRISHAN MEMBER (TECHNICAL) po ¥ Registrar National Company Law Tribunal New Delhi KB 9 Company Petition ito. (1B)-238 (PB)/2017 "