M/s Anhui Technology Imp. & Exp. Co. Ltd. vs M/s Pantel Technologies Pvt. Ltd.

Dr. Deepti Mukesh, J

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 M/s Anhui Technology Imp. & Exp.

Co. Ltd. (for brevity ‘Operational Creditor’) through its authorized representative who is Power of Attorney Holder Mr. Manoj A.I., with a

prayer to initiate the Corporate Insolvency process against M/s Pantel Technologies Private Limited (for brevity ‘Corporate Debtor’).

The Applicant, the Operational Creditor namely M/s Anhui Technologies Imp. & Exp. Co. Ltd, is a company incorporated and existing under the

laws of China, having its head office at 459 West Changjiang Road, Hefei, China. The Registration Identification Number of the applicant is

91340000148941384F.

The Respondent, the Corporate Debtor namely M/s Pantel Technologies Private Limited is a company incorporated on 23.08.2010 under the

provisions of Companies Act, 1956 with CIN No. U72300DL2010PTC207463, having its registered office at. 214, Triveni Complex, E 10-12, Jawahar

Park, Laxmi Nagar, New Delhi -110092.

The Authorised Share Capital of the respondent company is Rs. 3,00,00,000/- (Rupees Three Crores only) and Paid Up Share Capital of the

company is Rs. 2,50,00,000/- (Rupees Two Crores and Fifty Lakhs only) as per Master Data of the company.

The Operational Creditor claims to have supplied varied quantities of Tablet PC SKD Kits, accessories and other allied materials to the Corporate

debtor. The terms and conditions of such supply was that payment of the goods so supplied was to be made on basis of Open Account 90 days after

Bill of Lading Date. The goods were supplied by the Operational Creditor in accordance with the arrangement between the parties and the same were

received by the Corporate Debtor without any dispute or demur which were utilized and/or consumed by the Corporate Debtor in the usual course of

business.

With the supply of each tranche to the Corporate debtor, the Operational Creditor raised invoices from time to time and out of total invoices, 6

invoices remained unpaid.

The Corporate Debtor failed to make payment within the agreed credit period and therefore Operational Creditor through its advocates sent a

notice vide email dated 03.02.2017 and 13.02.2017 and demanded the payments due from Corporate debtor. The copies of the said email are annexed

with the present application.

Pursuant to the meeting between the representatives of Operational Creditor and Corporate debtor on 14.02.2017, the Corporate Debtor issued a

letter dated 14.02.2017 addressed to the Operational Creditor whereby the Corporate debtor duly acknowledged its liability and informed that due to

demonetization by the Government of India, cash crunch is faced by the Corporate debtor, leading to delay in payment. The Corporate debtor further

made assurances to make payment to the Operational Creditor without any delay. The said letter is annexed with the present application.

Inspite of various requests made and reminders sent by the Operational Creditor, the Corporate Debtor failed to pay the amount demanded.

Consequently, the Operational Creditor issued an email dated 03.03.2017 followed by letter dated 23.03.2017, demanding payments due from the

Corporate debtor.

On failure to pay the outstanding amount by the Corporate debtor, the Operational creditor sent a demand notice dated 30.06.2017 under Section 8

of the Insolvency and Bankruptcy Code, 2016 to the Corporate debtor asking them to make the entire payment of Rs. 7,05,22,339.68/- (Equivalent to

USD990,681.27) within 10 days from receipt of the notice, failing which the Operational Creditor shall initiate the Corporate Insolvency Resolution

process against the Corporate debtor.

The Corporate debtor has replied to the Section 8 notice vide its email dated 18.07.2017 alongwith attaching letter dated 10.07.2017 and offered to

pay the due amount by way of monthly installments over a period of more than 03 years i.e. August, 2017 to October 2020. The aforesaid payment

schedule offered by the Corporate debtor being wholly unreasonable, the Operational Creditor vide its letter dated 23.08.2017 rejected the payment

schedule offered by the Corporate debtor.

The Operational Creditor has stated that total debt due and payable is Rs. 7,05,22,339.68/- (Rupees Seven Crores Five Lakhs Twenty- Two

Thousand Three Hundred and Thirty- Nine and Sixty- eight paisa only) which is equivalent to United States Dollar 990,681.27 considering the

exchange rate of Rs.71.19= 1 USD as on 4th September, 2018 and hence filed the present application.

The Corporate debtor has filed its reply and raised objections with respect to the supply of faulty goods. It is submitted by the Corporate debtor

that several emails have been written to the Operational Creditor with respect to pending delivery of spare parts and delivery of faulty goods by the

applicant. The copy of entire trail of e-mail between 18.07.2016 to 30.09.2016 are annexed along with the reply.

The e-mails of the Corporate debtor dated 08.09.2016 and dated 12.09.2016 were addressed to the Corporate debtor complaining about the faulty

and improper goods.

In rejoinder of the applicant, the submissions made in the application are reiterated and controverting the assertions in the reply. It is stated that

Letter of Guarantee dated 14.02.2017, issued by the Corporate debtor shows clear admission of liability by the Corporate debtor, wherein no such

alleged dispute of faulty goods was raised and the grounds for non-payment was mentioned as “Demonetization†and “unable to sale goods

due to Cash Crunch in the marketâ€​.

It is further submitted in the rejoinder that Corporate debtor in response to the demand notice dated 30.06.2017, Corporate debtor had offered to

pay the due amount by way of monthly installments over a period of more than 03 years, which was unreasonable and unacceptable. It is further

submitted that despite the Corporate debtor alleging “existence of disputeâ€, it could not provide a single document reflecting the dispute about

quality of goods received by them. On the contrary, the Corporate debtor had issued a Letter of Guarantee dated 14.02.2017 confirming to pay the

entire amount to the Operational Creditor without any objection and delay.

It is pertinent to note that the Operational Creditor has placed on record all the tax invoices, stating that the Corporate debtor itself had

acknowledged the said invoices. There is no documentary evidence on record to show that any complaint was ever made or any proceedings were

initiated by the Corporate debtor regarding pending delivery of spare parts and delivery of faulty goods by the Operational creditor .The Corporate

debtor has repeatedly communicated to Operational creditor of its intention to pay outstanding dues but has repeatedly failed to make any payment.

The Corporate debtor had admitted its liability to pay the outstanding dues in the Letters and e-mails exchanged and ensued between the parties. Once

the debt shown as due, it is for the Corporate debtor to prove that there are no outstanding dues to be paid to the Operational creditor. Therefore,

without any specific details, material particulars and evidence the fact of existence of a dispute cannot be sustained.

In “Innoventive Industries Ltd.(Supra)â€, the Hon’ble Supreme Court held that pre-existing dispute is the dispute raised before demand

notice or invoices was received by the ‘Corporate Debtor’. Any subsequent dispute raised while replying to the demand notice under Section

8(1) cannot be taken into consideration to hold that there is a pre-existing dispute.

In “Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software(P)Limited− 2017 SCC On Line SC 1154â€​, Hon’ble Supreme Court held:

“40……………….Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention

which requires further investigation and that the “dispute†is not a patently feeble legal argument or an assertion of fact unsupported

by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing

so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the

dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the

adjudicating authority has to reject the application.â€​

In the present case, there is no such dispute which is pre-existing, albeit a hypothetical or illusory dispute has been raised by the ‘Corporate

Debtor’ and the same is a moonshine defense.

In view of above, we are satisfied that the present application is complete and the Operational Creditor is entitled to claim its dues, establishing the

default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application

is admitted.

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

The Operational creditor has not proposed the name of any Interim Resolution Professional. In view of the same, this Bench appoints Mr. Gautam

Singhal having registration no. IBBI/IPA-001/IP-P01437/2018-2019/12240 and email address is gautam@klfindia.com and contact number is

9811898418, as the IRP of the Respondent. The IRP is directed to take all such steps as are required under the statute, more specifically in terms of

Sections 15,17,18,20 and 21 of the Code.

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 Respondent prohibiting proviso (a) to (d) of the Code. However, during the pendency of the moratorium period,

terms of Section 14(2) to 14(3) of the Code shall come in vogue.

In terms of above order, the Application stands admitted in terms of Section 9(5) of IBC, 2016.

The applicant/Operational Creditor shall deposit a sum of Rs. 2 lakhs in a separate account towards the immediate expenses to be incurred and

accounted for by the IRP. The amount shall be reimbursed to Operational Creditor after the COC has approved the expenses of the IRP before

appointing Resolution Professional.

The registry is directed to communicate a copy of the order to the Operational Creditor, the Corporate Debtor, the Interim Resolution Professional

and the Registrar of Companies, NCR, New Delhi at the earliest but not later than seven days from today. The Registrar of Companies shall update

its website by updating the status of ‘Corporate Debtor’ and specific mention regarding admission of this application must be notified.