R. Varadharajan, Member - (1.) This is an application to initiate the Corporate Insolvency Resolution Process (CIRP) in respect of Indo Alusys Industries Ltd. (Corporate Debtor) under the provisions of Insolvency and Bankruptcy Code, 2016 (EBC, 2016) filed by one M/s. J.P. Engineers Pvt. Ltd. as 'Operational Creditor'. In the prescribed form filed by the 'Operational Creditor' as provided under Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 and in short 'AAA' Rules, the applicant states that the 'Corporate Debtor' was incorporated on 7.10.1979 with a share capital of Rs. 15.00 crores and presently the paid up capital being Rs. 8,50,79,000/-. It is also stated in the application that the registered office of the 'Corporate Debtor' is located at 606, Tolstoy House, 15, Tolstoy Marg, Delhi-110001. Under Part-in of the said application, no Insolvency Resolution Professional (IRP) has been proposed and in Part-IV details of transactions giving rise to debt and the amount due to the 'Operational Creditor' by virtue of the said transactions are given. It is averred therein that the 'Operational Creditor' had supplied aluminum ingots and scraps to the 'Corporate Debtor' based on purchase orders placed by respondents vide numerous emails as well as based on telephonic conversations. Based on the same, it is averred by the 'Operational Creditor' that supplies were effected and invoices were also raised for the products supplied from time to time as detailed in Annexure-A to the application. An aggregate amount of the said invoices raised between 23.4.2016 and 6.12.2016 amounts to Rs. 9,33,23,904/-.
(2.) Against the value of goods supplied, it is contended by the 'Operational Creditor' that 4 cheques dated 27.12.2016 by way of part payment in relation to the amount owed against the invoices annexed as Annexure-A the 'Corporate Debtor', issued 4 cheques of Rs. 50,00,000/- each thereby aggregating in all to Rs. 2.00 crores. It is also averred by the 'Operational Creditor' that as between parties to the application, subsequent to the issue of cheques a reconciliation statement as on 31.12.2016 was prepared and signed by the authorised signatory of the 'Corporate Debtor' under its letter head admitting that there yet remains a debit balance of Rs. 11,55,87,461.80/- and that the same has been annexed as Annexure-E to the application. Subsequent to the reconciliation statement the 'Operational Creditor' claims that 4 more cheques were issued on 9.1.2017 by the 'Corporate Debtor', the value of each cheque being Rs. 50.00 lakhs. However, all the 8 cheques when presented for payment, i.e. two cheques on 22.01.2016(?) and the remaining 6 cheques on 23.01.2016(?) were dishonoured for the reasons 'insufficient funds'. A legal notice it is claimed had been issued on 20.2.2017 under the provisions of Section 138 read with Section 141 of the Negotiable Instrument Act, 1881 by the 'Operational Creditor' through its counsel bringing to the notice of the 'Corporate Debtor' about the dishonoured cheques as well as demanding the payment of the amount due from the 'Corporate Debtor'. For the aforesaid notice issued under the hand of the legal counsel of the 'Operational Creditor', it is submitted by the 'Operational Creditor' that a reply notice dated 4.3.2017 was received from the 'Corporate Debtor' through its legal counsel dated 4.3.2017 wherein, the 'Corporate Debtor' had disputed the liability arising out of 8 cheques issued on the ground that there was a clear oral understanding between the parties that if the payment of the invoices raised by the 'Operational Creditor' are not cleared through LCs and only under the said circumstances the said 8 cheques shall be presented for payment and that 8 cheques have been sought to be encashed fraudulently with a view to blackmail the 'Corporate Debtor' and in the circumstances the 'Corporate Debtor' is not liable to pay any monies as claimed by the 'Operational Creditor'. After issuing rejoinder notice to the above reply dated 28.3.2017, it is averred by the 'Operational Creditor' that it was followed up with a complaint under Section 138 of the Negotiable Instrument Act, 1881 before Tis Hazari Court, Delhi in the month of June, 2017.
(3.) Meanwhile, it is averred that the 'Operational Creditor' had also issued a notice, as mandated under Section 8 of the IBC, 2016 bringing to the notice of the 'Corporate Debtor' about the default committed in Form-3 prescribed under AAA Rules, 2016 demanding payment of an unpaid operational debt on 9.5.2017 under the hand of 'Operational Creditor' itself. In relation to the said notice of default, the 'Corporate Debtor' is said to have responded vide its reply dated 22.5.2017 issued under the hand of its counsel wherein, the amount claimed to be in default had been vehemently disputed and on the other hand a counter claim in a sum of Rs. 1,54,55,652/- is claimed to be due to the 'Corporate Debtor'. The 'Operational Creditor' as mandated under Section 9(3)(c) of IBC, 2016 has also filed as evidenced from Annexure-K a certificate from the bankers in relation to the unpaid liability of Rs. 11,12,50,358/-.;