Superior Glass Private Limited Vs NRM Interior Construction Private Limited

Harnam Singh Thakur, Member (Judicial)

The present petition is filed, under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity ‘IBC’ / ‘Code’), by Superior Glass Private Limited through its Director Mr. Surinder Kumar Saluja (for brevity ‘Operational Creditor’ / ‘Petitioner’), with a prayer to initiate Corporate Insolvency Resolution Process (CIRP) in case of NRM Interior Construction Private Limited (for brevity ‘Corporate Debtor’ / ‘Respondent’).

The Corporate Debtor, namely, NRM Interior Construction Private Limited, is a Company incorporated on 03.12.2014 under the provisions of the Companies Act, 2013 with CIN No. U45400HR2014PTC053907 with its registered office at Tower-5B, 14th Floor, Cyber Terraces DLF Cyber City, Phase-III Gurgaon-122002. Hence, the territorial jurisdiction lies with this Adjudicating Authority. Copy of the master data of the corporate debtor is attached as Annexure B of the application. The copy of the board resolution of the operational creditor authorising Mr. Surinder Kumar Saluja, to act on behalf of the company is attached as Annexure K of the petition.

The facts of the case, briefly, as stated in the petition are that the corporate debtor has entered into a contract based on four purchased orders bearing order No.: SD-1136 dated 06.08.2014, SD-1167 dated 24.08.2014, SD-1004 dated 30.05.2015 & SD-1181 dated 07.09.2015 for the supply of “Lacquered Glass” at their site and thereafter, the petitioner raised several invoices from time to time for the supply as per the purchase order. The corporate debtor has made a few payments against those invoices but an amount of Rs.3,96,011/- (Rupees Three Lakhs Ninety-Six Thousand and Eleven Rupees only) is outstanding and payable towards the petitioner. The petitioner is maintaining the running account of the corporate debtor and the last payment made by the corporate debtor to the operational creditor is on 23.12.2016. However, despite making several reminders and requests, no payment has been made by the corporate debtor.

It is submitted by the petitioner in Form 5, Part IV that the amount claimed to be in default is Rs.3,96,011/- (Rupees Three Lakhs Ninety-Six Thousand and Eleven Rupees only). The petitioner has attached a copy of purchased orders (Annexure-C) and invoices (Annexure-D), Copy of the Ledger account (Annexure-J) evidencing the default made by the corporate debtor.

A demand notice dated 21.06.2019 in Form 3 is stated to be issued by the operational creditor to the corporate debtor and the same has been delivered vide registered post which is attached at Annexure E of the petition. The corporate debtor has replied to demand notice through letter dated 27.06.2019 wherein it is stated that the corporate debtor has already addressed similar notices and the same has been replied by letters dated 08.07.2017, 05.02.2019 and 08.06.2019. The corporate debtor has agreed regarding placing of orders with the petitioner. However, it is further mentioned that due to poor quality of service by the petitioner, the corporate debtor has occurred losses. After joint measurement of premium glass and non-premium glass at the site, the total amount due was determined to be Rs.1,01,179/- which has been paid on 03.08.2016.

The petitioner has also attached an affidavit under Section 9(3)(b) of the Code, wherein it has been stated that the said goods are supplied with the satisfaction of the corporate debtor and after issuance of the demand notice dated 21.06.2019, no payment towards the unpaid operation debt has been made by the corporate debtor and reply to the statutory demand notice has been received on 27.06.2019. There is no pre-existing dispute according to the petitioner. The aforesaid affidavit has been filed vide diary No.4716 dated 11.09.2019.

In Part-III of Form No. 5, Mr. Gaurav Katiya, Interim Resolution Professional (IRP) bearing IBBI/IPA-001/IP-P00209/2017-18/10409 has been proposed by the petitioner. The Form-2 dated 22.07.2019 along with certificate of registration issued by the Insolvency and Bankruptcy Board of India is attached as Annexure-M with the petition.

The notice of this petition has been issued to the corporate debtor to show cause as to why this petition be not admitted. The affidavit of service was filed by Diary No. 6904 dated 06.12.2019. The corporate debtor has filed a reply vide diary No.815 dated 29.01.2020, wherein it is stated that after placing the purchase orders with the operational creditor, they have completed the work at the site of the corporate debtor. The applicant has already been paid in full in the year 2016 itself and the aforesaid payment is determined on the basis of the joint measurement. The amount of Rs.1,01,179/- has also been agreed by the petitioner on the basis of the joint measurement and the same has been conveyed vide email dated 14.07.2016. A legal notice dated 02.06.2017 has also been issued by the petitioner which was replied by the corporate debtor by letter dated 08.07.2017. A demand notice dated 01.02.2019 was also issued by the petitioner demanding Rs.3,96,011/- which was duly replied by letter dated 05.02.2019. The above fact has been concealed by the petitioner. Apart from the aforesaid legal notices the petitioner has further issued a demand notice on 29.05.2019 which was replied on 08.06.2019 and the applicant did not mention the earlier demand notices in the demand notice dated 29.05.2019 in this application. There was no running account of the corporate debtor and the payments are made with respect to particular purchase orders/invoices. The last payment made by the CD of Rs.4249/- was made with regard to a different PO Order No.6166 and the copy of the same are attached as Annexure R8 & R9 of the reply.

The rejoinder was filed vide Diary No.2161 dated 19.03.2020, wherein it is agreed that a part payment of Rs.1,01,179/- has been made by the corporate debtor and in the email dated 14.07.2016, the applicant has agreed for the joint measurement of the glass and there was no agreement on the payment of Rs.1,01,179/- as being full and final payment from the side of the corporate debtor. If the payment of Rs.1,01,179/- was to be received as full and final payment then the corporate debtor should have given a debit note for the remaining outstanding payments, however, the corporate debtor has failed to produce any debit note.

The short written submissions have been filed by the petitioner vide Diary No.00094/2 dated 25.01.2022 and by the respondent/corporate debtor vide diary No.00094/3 dated 03.11.2022.

We have heard the learned counsel for the petitioner as well as corporate debtor and have perused the records.

The first issue for consideration is whether the present application is filed within limitation or not. The petitioner has stated that they have received a payment of Rs.4249/- through any NEFT on 23.12.2016. The petitioner has not mentioned any date of default in part IV of Form 5. It is seen from the records that a ledger account of the corporate debtor has been maintained by the operational creditor in which a payment has been received by the petitioner on 23.12.2016 and the present application is filed on 05.08.2019. Hence, the present application is within limitation.

The another issue for consideration is whether the demand notice dated 21.06.2019 was properly served. It is seen that the demand notice in Form 3 dated 21.06.2019 has been served to the corporate debtor and the same has been replied by letter dated 27.06.2019. Therefore, demand notice was duly served upon the corporate debtor.

The next issue for consideration is whether the operational debt was disputed by the corporate debtor. It is deposed by way of an affidavit by the petitioner that there is no notice given by the corporate debtor relating to the dispute of the unpaid operational debt. The corporate debtor has replied by letter dated 02.06.2017, wherein it has been claimed that the applicant has already paid an amount of Rs.1,01,179/- in full in the year 2016 itself and the aforesaid payment is determined on the basis of the joint measurement. The petitioner has also conveyed vide email dated 14.07.2016. We have perused the email correspondence between the parties and it is seen that the operational creditor has agreed on the measurement done at the site of the corporate debtor. Thereafter, the petitioner has demanded payment of Rs.1,01,719/- ‘for difference in calculation of breakage part’. A legal notice has also been sent by the petitioner to the corporate debtor on 02.06.2017 which was replied by letter dated 08.07.2017 (Annexure R2 & R3 of the reply). Similarly, the demand notice dated 01.02.2019 has also been replied by letter dated 05.02.2019 (Annexure R4 & R5 of the reply). The aforesaid exchange of notices, the corporate debtor has taken up a stand of payment of Rs.1,01,719/- as full and final payment. The legal notices and the letters exchanged between the parties demonstrate that there is exist a pre-existing dispute between the parties. However, the petitioner has concealed this factum of pre-existing dispute by not referring to the earlier correspondence and exchange of e-mails between the parties. Reliance may be placed upon in the matter of Mobilox Innovations Private Limited VS. Kirusa Software Private Limited, Civil Appeal No.9405 of 2017, decided on 21.09.2017 passed by Hon’ble Supreme Court of India, wherein it has been held that

“40. Once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the “existence” of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the 86 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.”

Hence, the issue of pre-existing dispute is decided against the petitioner and in favour of the corporate debtor.

In the light of the discussion foregoing, CP (IB) No. 415/Chd/Hry/2019 is dismissed, however, without any order as to cost.