(B) BOTH PARTIES EXCHANGED CORRESPONDENCES AND THEREAFTER ARRIVED AT A SETTLEMENT ON 08.07.2014, WHEREBY THE CORPORATE DEBTOR WR
OPERATIONAL CREDITOR STATING THAT THEY WOULD BE CLEARING THE OUTSTANDING PAYMENT OF RS. 79,76,937/- (RUPEES SEVENTY-NINE LAKH SE
nine hundred and thirty-seven only) in five instalments as follows:â€
1. On 15.07.2014 : Rs. 10,00,000/-
2. On 30.07.2014 : Rs. 15,00,000/-
3. On 16.08.2014 : Rs. 15,00,000/-
4. On 30.08.2014 : Rs. 15,00,000/-
5. On 15.09.2014 : Rs. 24,76,937/-
Totalling- : Rs. 79,76,937/-
CREDITOR WERE DEFECTIVE AND NOT OF STANDARD QUALITY. THE CORPORATE DEBTOR HAD RAISED ISSUES OF INFERIOR QUALITY OF GOODS, WHICH WAS ALSO DULY
COMMUNICATED TO THE PETITIOvNidEeR PHONE CALLS AND EMAIL DATED 16.01.2014. A COPY OF THE EMAIL DATED 16.01.2014 HAS BEEN PLACED ON RECORD AS
Exhibit-1 at p.39 of the Reply [para 2(b) at p.34 of the Reply].
7. THE CORPORATE DEBTOR HAS FURTHER STATED THAT NO DEMAND NOTICE HAS BEEN SERVED ON THE CORPORATE DEBTOR, AND THEREFORE, THE PRESENT COMPANY
PETITION OUGHT NOT TO BE TREATED AS AN APPLICATION UNDER SECTION 9 OF THE IBC. FURTHER, THE CORPORATE DEBTOR IS NOT CONTRACTUALLY OBLIGED TO PAY TO THE
Operational Creditor in any manner.
8. THE CORPORATE DEBTOR HAS FURTHER STATED THAT IT HAD ISSUED SECURITY CHEQUES TO THE TUNE OF RvSi.d 7e9 L,7E6T,T93E7R/ -D ATED 08.07.2014. THEREAFTER,
DUE TO CHANGE OF SIGNATURE, IT HAD ISSUED STOP PAYMENT INSTRUCTIONS TO THE BANKERS FOR THE BALANCE CHEQUES OF RS. 69,76,937/-. WHEN THE DISPUTE
REGARDING THE QUALITY AND PRICE OF GOODS WAS UNRESOLVED, THE OPERATIONAL CREDITOR CONFRONTED THE CORPORATE DEBTOR FOR ISSUING FRESH POST-DATED
CHEQUES AS SECURITY TILL THE DISPUTES GOT FINALLY RESOLVED. THE CORPORATE DEBTOR ALSO ISSUED A CHEQUE FOR RS. 69,76,937/- DATED 03.03.2015 ON THE
CONDITION THAT IT SHOULD BE DEPOSITED ONLY IF THE DISPUTES GET RESOLVED. EVEN UP TO THE DATE OF THE POST-DATED CHEQUE, THE DISPUTE COULD NOT BE RESOLVED,
COMPELLING THE CORPORATE DEBTOR TO REQUEST THE OPERATIONAL CREDITOR NOT TO DEPOSIT THE CHEQUE. HOWEVER, THE CHEQUE WAS DEPOSITED, WHICH BOUNCED.
A STATUTORY NOTICE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT WAS ISSUED. SUBSEQUENTLY, CRIMINAL PROCEEDINGS WERE ALSO INITIATED BEFORE THE
Learned Magistrate, Jodhpur. The Corporate Debtor claims to have a fair chance of getting the criminal complaint dismissed in their favour.
9. THE OPERATIONAL CREDITOR HAS FILED A REJOINDER ON 13.12.2018 IN THE MATTER. IN THE REJOINDER, THE OPERATIONAL CREDITOR HAS STATED THAT THE ISSUE OF
DEFECTIVE QUALITY OF SUPPLIES HAS BEEN RAISED IN ONLY ONE OUT OF TWENTY-SEVEN CONSIGNMENTS, AND THAT THIS ISSUE WAS ALSO RESOLVED. THEREAFTER, FOUR
more consignments were delivered to the Corporate Debtor, who did not raise any issues [Para 3 of the Rejoinder].
10. IN SO FAR AS THE ISSUE OF CHEQUES BY THE CORPORATE DEBTOR IS CONCERNED, THE OPERATIONAL CREDITOR HAS EXPRESSLY DENIED THAT THE CHEQUES ISSUED
originally were exchanged for the reason of change of signatures.
11. We have heard both the parties and perused the record.
12. IT IS NOTICED FROM THE EMAIL DATED 16.01.2014 PLACED AS EXHIBIT-1 AT P.39 OF THE REPLY, THAT THE CORPORATE DEBTOR HAS INTIMATED TO THE OPERATIONAL
Creditor as follows:â€
“Dear Sir,
“In the last batch of carbon fibre reinforced laminates, several imperfections were found. The snap shots of those have been attached
herewith.
“Kindly make a note of such imperfections and let us know the challenges involved.â€
13. THE OPERATIONAL CREDITOR HAD REPLIED TO THE SAID EMAIL DATED 16.01.2014 ON 19.01.2014 [EXHIBIT-2 AT P.42 OF THE REPLY], WHEREIN IT HAS BEEN STATED
THAT DURING THE MANUFACTURING PROCESS, MANY TIMES THERE ARE PROBLEMS THAT ARE FACED WHILE CUTTING THE STRIP OR DEFECTIVE PORTION, AND THUS THERE MAY BE
several cut rolls in one roll.
14. SINCE THE EMAIL DATED 16.01.2014 SPECIFICALLY NOTES THAinT tÂh€eŒ last batch of carbon fibre reinforced laminates, several imperfections
were found,€ IT CAN ONLY BE TAKEN THAT THE OTHER CONSIGNMENTS WERE DEFECT-FREE. FURTHER, IN THE REJOINDER, THE OPERATIONAL CREDITOR HAS TAKEN A
SPECIFIC STAND THAT THE ISSUE OF DEFECTIVE QUALITY OF SUPPLIES HAS BEEN RAISED IN ONLY ONE OUT OF TWENTY-SEVEN CONSIGNMENTS, AND THAT THIS ISSUE WAS ALSO
RESOLVED. EVEN IF THE ISSUE IS ASSUMED TO BE UNRESOLVED, THIS WOULD ONLY COVER ONE CONSIGNMENT, AND THERE IS NO REASON WHY THE OTHER CONSIGNMENTS
OUGHT NOT TO BE PAID FOR, ESPECIALLY WHEN SEEN IN THE CONTEXT OF THE SPECIFIC STAND OF THE OPERATIONAL CREDITOR THAT AFTER THE ISSUE RAISED IN THE EMAIL OF
16.01.2014, FOUR MORE CONSIGNMENTS WERE SUPPLIED TO THE CORPORATE D 1E5B.T AORS. REGARDS THE CHEQUE STATED TO HAVE BEEN GIVEN AS SECURITY, THIS
CANNOT BE TAKEN TO BE A VALID DEFENCE. IN TERMS OF SECTION 139 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881, THERE IS A PRESUMPTION THAT THE HOLDER OF A
CHEQUE RECEIVED THE CHEQUE FOR THE DISCHARGE, IN WHOLE OR IN PART, OF ANY DEBT OR OTHER LIABILITY. WHILE THIS IS NO DOUBT A REBUTTABLE PRESUMPTION, THE
presumption stands unless the contrary is proved. The burden of proof is on the Corporate Debtor.
16. THEREFORE, THE PETITION MADE BY THE OPERATIONAL CREDITOR IS COMPLETE IN ALL RESPECTS AS REQUIRED BY LAW. IT CLEARLY SHOWS THAT THE CORPORATE DEBTOR
IS IN DEFAULT OF A DEBT DUE AND PAYABLE, AND THE DEFAULT IS IN EXCESS OF MINIMUM AMOUNT OF ONE LAKH RUPEES STIPULATED UNDER SECTION 4(1) OF THE IBC.
THEREFORE, THE DEFAULT STANDS ESTABLISHED AND THERE IS NO REASON TO DENY THE ADMISSION OF THE PETITION. IN VIEW OF THIS, THIS ADJUDICATING AUTHORITY
admits this Petition and orders initiation of CIRP against the Corporate Debtor.
17. The Operational Creditor has not proposed the name of any Interim Resolution Professional.
18. It is, accordingly, hereby ordered as follows:â€
(A) THE PETITION BEARING CP(IB) NO. 749/MB/C-IV/2017 FILED BY ERCON COMPOSITES, THE OPERATIONAL CREDITOR, UNDER SECTION 9 OF THE IBC READ WITH
RULE 6(1) OF THE INSOLVENCY & BANKRUPTCY (APPLICATION TO ADJUDICATING AUTHORITY) RULES, 2016 FOR INITIATING CORPORATE INSOLVENCY RESOLUTION PROCESS
(CIRP) against R&M International Private Limited [CIN: U45202MH2009PTC194919], the Corporate Debtor, is admitted.
(b) There shall be a moratorium under section 14 of the IBC, in regard to the following:
(I) 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;
(ii) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein;
(III) 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Sarfaesi) Act, 2002;
(iv) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor.
(c) Notwithstanding the above, during the period of moratorium,-
(I) THE SUPPLY OF ESSENTIAL GOODS OR SERVICES TO THE CORPORATE DEBTOR, IF CONTINUING, SHALL NOT BE TERMINATED OR SUSPENDED OR INTERRUPTED DURING THE
moratorium period;
(II) THAT THE PROVISIONS OF SUB-SECTION (1) OF SECTION 14 OF THE IBC SHALL NOT APPLY TO SUCH TRANSACTIONS AS MAY BE NOTIFIED BY THE CENTRAL GOVERNMENT IN
consultation with any sectoral regulator;
(D) THE MORATORIUM SHALL HAVE EFFECT FROM THE DATE OF THIS ORDER TILL THE COMPLETION OF THE CIRP OR UNTIL THIS ADJUDICATING AUTHORITY APPROVES THE
RESOLUTION PLAN UNDER SUB-SECTION (1) OF SECTION 31 OF THE IBC OR PASSES AN ORDER FOR LIQUIDATION OF CORPORATE DEBTOR UNDER SECTION 33 OF THE IBC, AS
the case may be.
(E) PUBLIC ANNOUNCEMENT OF THE CIRP SHALL BE MADE IMMEDIATELY AS SPECIFIED UNDER SECTION 13 OF THE IBC READ WITH REGULATION 6 OF THE INSOLVENCY &
Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
(F) SINCE THE OPERATIONAL CREDITOR HAS NOT PROPOSED THE NAME OF ANY INTERIM RESOLUTION PROFESSIONAL (IRP) IN THE MATTER, THE IRP SHALL BE APPOINTED
BY THIS ADJUDICATING AUTHORITY BY A SEPARATE ORDER. THE FEE PAYABLE TO IRP OR, AS THE CASE MAY BE, THE RP, SHALL BE COMPLIANT WITH SUCH REGULATIONS,
CIRCULARS AND DIRECTIONS AS MAY BE ISSUED BY THE INSOLVENCY & BANKRUPTCY BOARD OF INDIA (IBBI). THE IRP SHALL CARRY OUT FUNCTIONS AS CONTEMPLATED
by sections 15, 17, 18, 19, 20 and 21 of the IBC.
(G) DURING THE CIRP PERIOD, THE MANAGEMENT OF THE CORPORATE DEBTOR SHALL VEST IN THE IRP OR, AS THE CASE MAY BE, THE RP IN TERMS OF SECTION 17 OF
THE IBC. THE OFFICERS AND MANAGERS OF THE CORPORATE DEBTOR SHALL PROVIDE ALL DOCUMENTS IN THEIR POSSESSION AND FURNISH EVERY INFORMATION IN THEIR
knowledge to the IRP within a period of one week from the date of receipt of this Order, in default of which coercive steps will follow.
(H) THE OPERATIONAL CREDITOR SHALL DEPOSIT A SUM OF RS. 1,00,000/- (RUPEES ONE LAKH ONLY) WITH THE IRP TO MEET THE EXPENSES ARISING OUT OF ISSUING
public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC).
(I) THE REGISTRY IS DIRECTED TO COMMUNICATE THIS ORDER TO THE OPERATIONAL CREDITOR, THE CORPORATE DEBTOR AND THE IRP BY SPEED POST AND EMAIL
immediately, and in any case, not later than two days from the date of this Order.
(J) A COPY OF THIS ORDER BE SENT TO THE REGISTRAR OF COMPANIES, MAHARASHTRA, MUMBAI, FOR UPDATING THE MASTER DATA OF THE CORPORATE DEBTOR. THE
SAID REGISTRAR OF COMPANIES SHALL SEND A COMPLIANCE REPORT IN THIS REGARD TO THE REGISTRY OF THIS COURT WITHIN SEVEN DAYS FROM THE DATE OF RECEIPT OF A
copy of this order.
