M/S Ushasree Tea Private Limited vs M/S Shanti Equities 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 M/s Ushasree Tea Pvt. Ltd. (for

brevity ‘Applicant’) through its director Mr. Devashish Khetawat authorizing him to file present application vide Board resolution dated

12.03.2018, with a prayer to initiate the Corporate Insolvency process against M/s Shanti Equities Private Limited (for brevity ‘Respondent’).

The Applicant, the Operational Creditor namely M/s Ushasree Tea Private Limited is a company incorporated on 18.11.1997 under the provisions

of Companies Act, 1956 with CIN No. U70200WB1997PTC085916.

The Applicant is having its registered office at 2, Lal Bazar street, suit no.409, Kolkata, West Bengal- 700001.

The Respondent, the Corporate Debtor namely M/s Shanti Equities Private Limited is a company incorporated on 08.05.2007 under the provisions

of Companies Act, 1956 with CIN No. UL65910DL1995PLC064310.

The Respondent is having its registered office at A-88, Indutrial Area, Wazirpur, New Delhi-110052.

The Authorised Share Capital of the respondent company is Rs. 10,00,000/- and Paid Up Share Capital of the company is Rs. 1,00,000/- as per

Master Data of the company.

It is the case of the applicant that the representatives of respondent had approached the applicant in June, 2014 for supply of tea to a particular

geographical indication. Pursuant to such proposal, the applicant entered into negotiations for inter-state commerce with the respondent and it was

agreed that the Applicant will from time to time supply tea to the Respondent upon its demand. To this arrangement, it was specifically agreed that

upon procuring the goods by respondent and raising of invoices by applicant, the entire payment for such invoices shall be made in a timely manner.

In view of such arrangement, the Applicant supplied specified quantities of tea as and when required by the Respondent by way of interstate

transactions. It was agreed that for supply and transportation of the said goods, Century Global Logistics be engaged as transporter and carry the

goods to the godown of the Respondent.

It is further submitted by the applicant that in the course of such transactions, several payments were made against the invoices raised and last of

which was made on 20.03.2017. Against a total supply of goods worth Rs. 16,37,429/-, a sum of Rs. 11,16,740/- has been duly paid to the applicant

leaving a balance sum of Rs. 5,20,689/-as due and payable to the Applicant along with interest thereon. The applicant has annexed a copy of Ledger

account for the period starting from 2014 to 2017 with the application.

Inspite of various requests made and reminders sent to the Respondent by the Applicant, the Respondent never bothered to reply and on various

occasions has clearly refuted the claim of the Respondent.

On failure to pay the outstanding dues by the Respondent, the applicant sent a demand notice dated 08.02.2018 under Section 8 of the Insolvency

and Bankruptcy Code, 2016 to the respondent asking them to make the entire outstanding payments of Rs. 6,02,088/- inclusive of interest within 10

days from receipt of the notice, failing which the applicant shall initiate the Corporate Insolvency Resolution process against the Respondent. The

Respondent replied to the said notice vide email dated 03.03.2018, much later than 10 days of prescribed period, clearly denying all the transactions

with the applicant and has further stated that they will file a case of forgery against the applicant company.

Despite the demand notice sent under Section 8 of the Code, the Respondent has failed to pay the amount demanded, hence this application,

seeking to unfold the process of CIRP.

The applicant has stated that total debt due and payable by the Respondent to the applicant is Rs. 6,02,088/-(Rupees Six Lakhs Two Thousand and

Eighty- Eight only) which includes interest @18% p.a.

This Tribunal is constrained to proceed with the matter exparte against the Corporate Debtor as per order dated 09.10.2018 since the Corporate

Debtor has not appeared though Section 8 notice and the present application were duly served on the Respondent and proof of service is filed by the

applicant.

The applicant has attached the copy of bank statement of HDFC Bank for the period of 01.04.2014 to 31.03.2017 in compliance with the

requirement of Section 9(3)(c) of the IBC 2016.

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

In the given facts and circumstances, the present application is complete and the Applicant 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. In absence of any reply by Corporate

Debtor refuting the claim, therefore it is appropriate to admit. Hence, the present application is admitted.

The Applicant has not proposed the name of any Interim Resolution Professional. In view of the same, this Bench appoints Mr. Ram Phal

Bhardwaj having registration no. IBBI/IPA-001/IP-P01308/2018-2019/12053 and email address bhardwajca@hotmail.com and contact number is

9811160725, 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) and as extracted hereunder shall follow in relation to the Respondent prohibiting all of the following:

a. The institution of suits or continuation of pending suits or proceedings against the respondent 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 respondent 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 respondent in respect of its property including any action under the

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;

d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent.

However, during the pendency of the moratorium period in terms of Section 14(2) and 14(3) as extracted hereunder:

(2) The supply of essential goods or services to the respondent as may be specified shall not be terminated or suspended or interrupted during

moratorium period.

(3) The provisions of sub-section (1) shall not apply toâ€

a. such transaction as may be notified by the Central Government in consultation with any financial sector regulator.

b. a surety in contract of guarantee to a Respondent.

(4)The order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process, 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 respondent under section 33, the moratorium shall cease to have effect from the date of

such approval or liquidation order, as the case may be.

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

A copy of the order shall be communicated to the Applicant as well as to the Respondent above named by the Registry. Further the IRP above

named be also furnished with copy of this order forthwith by the Registry. In addition, a copy of the order shall also be forwarded to IBBI for its

records.