Associated Transways Organisation vs M.R. Nirman Private Limited

Harish Chander Suri, Member (Technical)

The Court is convened by video conference today.

This petition under section 9 of the IBC has been filed by Associated Transways Organisation, ( PAN: AFNPG2860G) , a proprietorship

concern, having its registered office at 27, Western Street Suite No. 502, Kolkata-700012, (hereinafter referred as the Operational Creditor), through

Mr. Vijay Kumar Gupta, its proprietor, seeking initiation of corporate insolvency resolution process in respect of M.R. Nirman Private Limited,

(CIN: U45400WB2007PTC115406 )a company incorporated under the provisions of the Companies Act, 1956, having its Registered office at

287/3, East Sinthee Road, Kolkata-700030 (hereinafter referred as the Corporate Debtor).

It is submitted the Operational Creditor has issued 13 invoices on account of transportation services rendered to the Corporate Debtor details

whereof have been mentioned in Annexure-B to the petition starting from 16th March 2012 to 30th October, 2013 in respect of which a sum of

Rs.11,60,000/- along with interest of Rs.7,97,509/-aggregating to Rs.19,57,509/-, is due to the Operational Creditor till the date of filing of the petition.

The Operational Creditor has also annexed copy of the ledger of the Corporate Debtor upto 5th January, 2019 (Annexure-C). The Operational

Creditor has annexed with the petition , working sheet of the amount due on account of outstanding invoice payment along with interest (Annexure-

D).The Operational Creditor further submitted a Demand Notice dated 21st January,2019 along with other letters and emails sent to the Corporate

Debtor.

It is submitted that a Demand Notice under section 8 of the Code was issued on 21st January, 2019 to the Corporate Debtor calling upon the

Corporate Debtor to make the payment of Rs.19,57,509/- in relation to the invoices cum challan attached to the notice, which payment was due and

outstanding by the Corporate Debtor by the Corporate Debtor to the Operational Creditor. It was also stated in the said notice that in the event the

payment due to the Operational Creditor is not paid within 10 days of receipt of the notice, the Operational Creditor would file an application before

the Adjudicating Authority for initiating a Corporate Insolvency Resolution Process under section 9 of the Code. The said notice was duly served on

the Corporate Debtor on 31st January, 2019. However, no response from the Corporate Debtor to this demand notice dated 21st January,2019. The

Operational Creditor has filed an affidavit under section 9(3)(b) of the Code specifically mentioned therein that the Operational Creditor has not

received any reply/dispute raised by the Corporate Debtor with regard to the operational debt claimed by the Operational Creditor in the present

petition. The Operational Creditor has enclosed with the petition a copy of the statement of bank accounts of the Operational Creditor to indicate that

the Corporate Debtor had business relationship with the Operational Creditor since January, 2012 onwards and payments were being received in the

account of the Operational Creditor in 2013. Invoices were raised on account of transportation services rendered to the Corporate Debtor.It is

submitted that the operational creditor had received only a sum of Rs.20,000/- on 24.10.2018, in its account in Allahabad Bank as reflected in the Bank

Statement (Annexure-F of the petition).

In the reply affidavit, the Corporate Debtor has submitted that due to its financial crises particularly non payment of its outstanding bills by one of its

clients, the Corporate Debtor is in a bed say and could not therefore, clear the dues of the Operational Creditor. It has been mentioned that out of

Rs.35,00,000/-, a sum of Rs. 23,63,000/- had already been paid to the Operational Creditor and even one of the Officers of the Corporate Debtor is

stated to have contacted the Operational Creditor and discussed the matter and informed them that the Corporate Debtor is ready and willing to pay

the said Principal outstanding dues with certain instalments initially an amount of Rs.50,000/- per month but the applicant refused to accept the said

proposal of the Corporate Debtor.

It is submitted that one of the clients of the Corporate Debtor namely Mcnally Bharat Engineering Pvt.Ltd. has not paid a huge amount of the

Corporate Debtor till date and, therefore, the Corporate Debtor is not in a position to make payment. It is submitted in the reply affidavit that the

Corporate Debtor has no intention to avoid the payment of the Operational Creditor but they are not in a position to pay the entire dues at a time and

would clear outstanding dues as soon as possible when they get their outstanding dues from their clients. The Corporate Debtor has further submitted

that their financial Conditions does not permit them to repay the entire amount just now.

The Operational Creditor has not proposed name of any Insolvency Resolution Professional. Therefore, as per the provisions of Section 16(3)(a) of

the IBC, we appoint Rajendra Kumar Agarwal , IRP having Reg. No. No IBBI/IPA-001/IP-P00324/2017-18/10594, to act as Interim

Resolution Professional (IRP). He shall file Form-2, and that no disciplinary proceedings are pending against him with the Board.

In view of the fact that the operational debt being claimed by the Operational Creditor has not been denied by the Corporate Debtor.The Corporate

Debtor has opted not to send even reply to notice under section 8 of the Code dated 21st January 2019 and since there is no mention of any pre-

existing dispute and only financial stringency is being taken as a defence in the reply affidavit, the petition deserves to be admitted.

The application is complete in all respects.

Having gone through and considered the petition, reply affidavit and all other documents placed on record by both the parties, we consider it to be

a fit case for admission and initiation of CIRP in respect of the Corporate Debtor. We have thus no hesitation to admit this petition with the following

orders:

ORDERS

i) The application filed by the Operational Creditor under Section 9 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency

Resolution Process against the Corporate Debtor, is hereby admitted.

ii) We hereby declare a moratorium and public announcement in accordance with Sections 13 and 15 of the I & B Code, 2016.

iii) Moratorium is declared for the purposes referred to in Section 14 of the Insolvency & Bankruptcy Code, 2016. The I.R.P. shall cause a public

announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public

announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency & Bankruptcy Code, 2016 shall be made immediately.

iv) Moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following:

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

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 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.

v) The supply of essential goods or services rendered to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted

during the moratorium period.

vi) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any

financial sector regulator.

vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process.

viii) Provided that where at any time during the Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the resolution

plan under sub-section (1) of Section 31 or passes an order for liquidation of the corporate debtor under Section 33, the moratorium shall cease to have

effect from the date of such approval or liquidation order, as the case may be.

ix) Mr. Rajendra Kumar Agarwal, IRP , registered with Insolvency and Bankruptcy Board of India, having Registration NoI BBI/IPA-001/IP-

P00324/2017-18/10594, email rkaco93@yahoo.co.in and holding AFA under Regulation 7-A of the IBBI (Insolvency Professionals) Regulations,

2016, is hereby appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for

evolving a resolution plan subject to production of written consent within one week from the date of receipt of this order.

x) The Interim Resolution Professional should convene a meeting of the Committee of Creditors and submit the resolution passed by the Committee of

Creditors and shall identify the prospective Resolution Applicant within 105 days from the insolvency commencement date.

xi) The Operational Creditor/Applicant is directed to deposit Rs. 1,00,000/- (Rupees One Lakh only) with the IRP appointed hereinabove within

three days from this order. IRP can claim the preliminary expenses and fees subject to the approval by the CoC and after constitution of CoC.

Registry is hereby directed to communicate the order to the Operational Creditor, the Corporate Debtor, the I.R.P. and the jurisdictional Registrar

of Companies by Speed Post as well as through email.

List the matter on 15/03/2022 for filing Progress Report.

Certified copy of the order may be issued to all the concerned parties, if applied for, upon compliance with all requisite formalities.