Kunal Agarwal vs M/S SDS Infratech Private Limited

The Present Application is filed under section 9 of Insolvency and Bankruptcy Code, 2016 (for brevity ‘IBC, 2016’)read with Rule 6 of the

Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity ‘the Rules’) by Mr. Kunal Agarwal, the Proprietor

of Narayi Ratan Scaffolding (for brevity ‘Applicant’) with a prayer to initiate the Corporate Insolvency process against M/S SDS Infratech

Private Limited (for brevity ‘Corporate Debtor’).

The Applicant is a proprietor of M/S Narayni Ratan Scaffolding, having registration no. 07ADSPA0590L1ZB, inter-alia, involved in the business

ofproviding scaffolding material on rent to be used at construction sites. The applicant is having its registered office at Plot No 154/362/1, Pooth

Khurd, Firni Road, Delhi-110039.

The Corporate Debtor is a private limited company incorporated under the provisions of Companies Act, 1956 on 19.02.2008, having CIN

U74120DL2008PTC174176. The applicant is having its registered office at Bhagwati Business Centre S-561, School Block-II ,Shakarpur, Delhi-

110092.

The Applicant has stated the Corporate Debtor had placed work order dated 29.12.2012 to the applicant for supply of scaffoldingmaterial

whereinthe material was to be delivered at the construction site of Corporate Debtor. It was agreed amongst the parties that the payment was to be

made by the Corporate Debtor within 20 days (which was later on mutually decided to be 30 days) after issue of the invoice, and for any late

payment, interest ® 18% per annum was payable by the Corporate Debtor. It was further agreed that the cost of the goods/material was to be paid

by the Corporate Debtor to the applicant in case of any damage or loss etc. caused to the material. In case of loss of MS shuttering plates, it was

agreed that Rs.1,000/- per plate was to be paid by the Corporate Debtor, and in case of loss of MS Channel, Rs. 2,250/-per piecewas payable by the

Corporate Debtor. The applicant supplied the scaffolding material vide 3 Form DVAT 33 No. 388 dated 30.12.2012, No. 389 dated 01.01.2013 and

No. 392 dated 09.01.2013.

The applicant submits that the invoices were raisedagainst the corporate debtor from 30.12.2012 to 31.03.2018. The applicantfurther submits that

the corporate debtor has lost 660 MS shuttering plates and had therefore requested the applicant not to levy hire/rent charges for the said 660 plates

and instead levy the amount of loss i.e. Rs 1000/- per pate in the invoice. The request by the corporate debtor through email is annexed.The applicant

accordingly charged and raised an invoice No HR0941 dated 28.02.2015 thereby levying Rs.6,60,000/- for the loss of 660 MS shuttering plates.

However, since the corporate debtor was not making payment, the applicantcancelledthe said invoice and issued fresh invoice No HR1039 dated

31.05.2015 for hire/rent charges on 60 MS shuttering plates with effect form 15.02.2015 till 31.05.2015. Further, to equalize the amount levied for loss

of MS shuttering plates, the applicant gavecredit of Rs 6,93,000/- on 23.07.2015, which included the amount of tax too.

The applicant further submits that various emails dated 03.07.2013, 15.04.2014, 22.09.2014, 30.08.2016 were sent to the corporate debtor asking for

payment. The applicant further sent an email dated 15.10.2016 to the corporatedebtor informing that the cheque for Rs 1,00,000/- issued in part

discharge of its liability by the corporatedebtor had been dishonored.Copy of email dated 15.10.2016 is annexed.

The applicant submits that a maildated 24.11.2016 wasreceived from the corporate debtor asking to forward the work order which contained the

cost of each unit of MS shuttering plates and MS channels to be paid by the corporate debtor in cases of loss. In pursuant to that, the applicant sent

the mail to the corporate debtor along with the work order, showing the amount to be paidfor lossas agreed between the parties. Even after sending

the details of the payment, the corporate debtor fails to make any payment.

The applicant issued a Demand Notice dated 30.05.2019 under Section 8 of the I& B Code, 2016(Under Rule 5 of the Insolvency and Bankruptcy

(Application to Adjudicating Authority) Rules, 2016 byissuing Form 3 which was sent by Registered Post to registered address of the Corporate

Debtor as well as by email on 04.06.2019 as reflected on MCA website. The Demand Notice was duly delivered to the Corporate Debtor on

03.06.2019 as evident from the tracking report, and vide mail on 04.06.2019, reflecting ‘Item delivery confirmed’.

The Corporate Debtor has neither raised any dispute to the aforesaid notice nor made any payment towards the outstanding dues.

The Applicant filed present Application under section 9 of IBC, 2016 and served the copy of this application through speed post at its registered

address as reflected on the MCA website. On 23.12.2020, the Learned Counsel for the corporate debtor had appeared and it is recorded that the

parties had amicably settled the matter. The reply is not filed as party sought and were given one more opportunity to complete thesettlement. Since

the settlement was not complete, the corporate debtor was proceeded ex-parte on the same day.

As per Form V, Part IV, the Corporate Debtor is liable to pay an outstanding sum of Rs. 28,44,733/- (Rupee Twenty-Eight Lacs Forty-Four

Thousand Seven Hundred Thirty There Only) which includes interest till 30.04.2019.

The Applicant has filed an affidavit under section 9(3)(b) dated 05.09.2019 affirming that no notice of dispute has been given by the Corporate

debtor relating to dispute of the unpaid operational debt.

The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application.

The last invoice was raised on31.03.2018, and the present application was filed on 20.09.2019, hence the debt is not time barred and the

application is filed within the period of limitation.

In the given facts and circumstances, the present application is complete and the Applicant is entitled to claim its dues, which remain

uncontroverted by the Corporate Debtor, and moreover stand admitted as the corporate debtor appeared before the court and sought time for

settlement. Therefore, the default of the operational debt is established beyond doubt. The present application is admitted, in terms of section 9 (5) of

IBC, 2016.

Since the Applicant has not named the Insolvency Resolution Professional, Mr.Deepak Kukreja, with registration number IBBI/IPA-002/IP-

N00077/2017- 18/10208 (email â€"csdeepakkukreja@yahoo.com, is appointed by this Hon’ble Tribunal as IRP subject to the condition that no

disciplinary proceedings are pending against such an IRP named who may act as an IRP in relation to the CIRP of the Respondent and specific

consent should be filed in Form 2 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rule, 2016 and make

disclosures as required under IBBI (insolvency Resolution Process for Corporate Persons) Regulations, 2016 within a period of one week from the

date of this order.

We direct the Operational Creditor to deposit a sum of Rs. 2 lacs with the Interim Resolution Professional, namelyMr. Deepak Kukreja to meet

out the expense to perform the functions assigned to him in accordance with regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency

Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within one week from the date of receipt of this order by the

Operational Creditor. The amount however be subject to adjustment by the Committee of Creditors, as accounted for by Interim Resolution

Professional, and shall be paid back to the Operational Creditor.

As a consequence of the application being admitted in terms of Section 9(5) of IBC, 2016, moratorium as envisaged under the provisions of

Section 14(1), shall follow in relation to the Corporate debtor, prohibiting as per proviso (a) to (d) of the Code. However, during the pendency of the

moratorium period, terms of Section 14(2) to 14(4) of the Code shall come in force.

A copy of the order shall be communicated to the Applicant, Corporate Debtor and IRP above named, by the Registry. In addition, a copy of the

order shall also be forwarded to IBBI for its records. Applicant is also directed to provide a copy of the complete paper book to the IRP. A copy of

this order be also sent to the ROC for updating the Master Data. ROC shall send compliance report to the Registrar, NCLT.