ROOFS And Ceilings (I) Pvt. Ltd. vs Duggal Associates Pvt. Ltd.

This application is filed by M/s. Roofs and Ceilings (I) Pvt. Ltd. ( for brevity the applicant) through Mr. Nishadh Sudhir Gandhi duly authorized by

the Board Resolution dated 15.02.2019 U/s. 9 of the Insolvency and Bankruptcy Code, 2016 read with Rules 6 of the Insolvency and Bankruptcy

(Application to Adjudicating Authority) Rules, 2016, with a prayer to initiate the Corporate Insolvency Resolution Process against M/s. Dugal

Associates Pvt. Ltd. ( for brevity the Corporate Debtor).

The applicant is a Company incorporated as private limited company on 30.4.2003 under the provisions of Companies Act, 1956 having C1N

U26950MH2003PTC140226. The applicant is engaged in the business of Aluminum Sheets, Roofing Sheets, Galvanized Sheets, False Ceilings,

Roofing, Roof Light Sheets, Roofing Material Dealers, Aluminium Roofing Sheets Dealers, Roofing Sheets and takes the work orders for various

kinds of roofing & ceiling works.

The Corporate Debtor is Company incorporated as private limited company under the provisions of the Companies Act, 1956 having CIN

U26960DL1998PTC092946 on 26.03.1998 having registered office at D-242, Krishna Park, Devil Park, Khanpur, New Delhi-110062 as reflected in

master data of the MCA website. The authorised capital of the CD is Rs. 5,00,000/- and paid up capital of the CD is Rs.5,00,000/-.

It is stated that the Corporate Debtor approached the Operational Creditor for the supply of material for roofing etc. for Carpet Expo Mart,

B.1.D.A Carpet City, Bhadohi, Uttar Pradesh and accordingly, issued a Purchase Order No. 37 dated 18th October, 2016. Pursuant to the said

purchase order, the applicant supplied the materials as mentioned in the said purchase order at the said site and the invoices for the same were raised,

by the applicant.

The applicant states that as per work done, various invoices for total of Rs.1,66,57,721.95 ( Rupees One Crore Sixty Six Lakh Fifty Seven

Thousand Seven Hundred Twenty One and paise Ninety Five only) were raised by applicant and delivered to CD which were duly received by the

CD without any complaint or dispute with respect of the goods. The CD had issued certificate to that effect confirming the execution of job for an

amount of Rs.1,66,57,00.000/- though part payment was made leaving balance of Rs.28,26,817.95/-.

The Operational Creditor, on several occasions, requested the Corporate Debtor to make the payment of the said outstanding amount of

Rs.28,26,817.95/- towards principal amount, along with inertest to the Operational Creditor. The Corporate Debtor vide email dated 27th February,

2018 has admitted the delay and default in making payments and had stated that they shall be clearing the dues at the earliest. However, despite the

same the Corporate Debtor failed, neglected and defaulted to make the payment of the said outstanding amount along with interest.

Since the Corporate Debtor failed and neglected to make the payment of the said outstanding amount alongwith the interest the Operational

Creditor was constrained to issue a demand notice dated 28th May. 2018 as per Form 3 and under sub-section (1) of section 8 of the Insolvency and

Bankruptcy Code, 2016 to the Corporate Debtor calling upon the Corporate Debtor to pay an amount of Rs. 28,26,817.95/- towards principal and

Rs.14,03,853.95/- towards interest which aggregates to the total outstanding being Rs.42,30,671.90 within 10 days from the receipt of the said notice,

by the Corporate Debtor.

The demand notice was sent at registered address returned with remark 'not found ' but the envelope served at site address at Bhadohi (UP.) was

duly delivered. The track report for the same is annexed. The Corporate Debtor was also served with notice u/s. 8 on its email address as registered

with MCA website. The copy of same is annexed which is stated as delivered and read.

Despite the service of the demand notice in terms of the Insolvency & Bankruptcy Code, 2016, the Corporate Debtor has neither replied to the

Demand Notice nor has made any payment of the said outstanding amount of Rs.42,30,671.90/- to the Operational Creditor. Hence, the Operational

Creditor filed the present application.

The Corporate Debtor was duly served at the addressed reflected on MCA Website at new address. The applicant states that Corporate Debtor

changed its address on 28.01.2019 as per Form No. INC-22, which is annexed with application. The Corporate Debtor was also served the dasti

which was duly received by one Mr. Ashish Gupta stating to be Assistant Manager of CD.

In spite of service of application and thereafter copy of order passed by the Bench, none appeared for CD and the matter was ordered to proceed

exparte on 29.07.2019.

After hearing the counsel for the applicant and the admission in form of email from the CD with respect to the debt falling due the default is

proved beyond doubt. The CD has neither replied nor appeared for defending the application and thus application deserves to be admitted.

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

The present application is not barred by limitation as the date of deault is 28.07.2017 as per part IV of Form 5 and application is filed on

28.09.2019.

The applicant has filed an affidavit in compliance of Section 9(3)(b) stating no notice of dispute was raised from CD by the applicant. The

applicant has attached the copy of bank statement in compliance with the requirement of Section 9(3)(c) of the IBC 2016.

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 fulfilment of requirements under section 9(5) of the Code. Hence, the present application is

admitted.

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

Pradeep Upadhyay IP Registratiion NO. IBBI/IPA-001/1P-P-01415/2018-2019/12233 having email address capuaindia@qmail.com Mobile No.

9811130194 as the IRP of the Corporate Debtor. The 1RP 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,

We direct the Operational Creditor to deposit a sum of Rs.2 Lakh with the Interim Resolution Professional 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 three days 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) and as extracted hereunder shall follow in relation to the Corporate Debtor prohibiting all of 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;

d) The recovery of any property by an owner or successor where such property is occupied by or in the possession of the corporate debtor.

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

(2) 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.

(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 Corporate Debtor.

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 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.

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 Corporate Debtor 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. 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.