R. Varadharajan, Member - (1.) Vinod Cotton Corporation representing itself to be an 'Operational Creditor' under the provisions of Insolvency and Bankruptcy Code, 2016 (IBC, 2016) has sought to initiate the Corporate Insolvency Resolution Process (CIRP) against Pasupati Fabrics Limited being its 'Corporate Debtor'. It is stated in Form 5, being the application prescribed for 'Operational Creditor' to initiate CIRP under the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, for brevity hereinafter called as 'AAA' Rules, that a total sum of Rs. 5,16,17,335/- is the amount of debt incurred by the 'Corporate Debtor' towards supply of cotton and that the said amount is also in default on the part of the 'Corporate Debtor'. It is further stated in the said Form that the debt fell due from 15.12.2014 and that notice through its legal Counsel dated 22.12.2014 annexed as Annexure-10 to the application was issued to the 'Corporate Debtor' to which a reply has also been sent by the 'Corporate Debtor' dated 19.1.2015 annexed as Annexure-11 wherein apart from denying the liability, it has also been brought to the notice of the 'Operational Creditor' that the company was declared as a sick company under Section 3(1)(o) of the Sick Industrial (Provisions) Act, 1995 (sic 1985) by the BIFR in Ref. No. 375/2001 and in the circumstances the winding up notice/petition is uncalled for. Demand notice/invoice as contemplated in Forms 3 and 4 of the 'AAA' Rules has also been issued annexed as Annexure-5 to the Application dated 9.2.2017 and subsequently the said notice being withdrawn and fresh notice being sent on 22.2.2017. On receipt of the notice of demand, the 'Corporate Debtor' has also replied to the same wherein a sum of Rs. 1,89,87,747/- as on 31.3.2012 is stated to be in debit balance vis--vis. the 'Operational Creditor' in its books.
(2.) In relation to the Application, it is seen that the 'Corporate Debtor' has filed a reply raising preliminary objections in relation to the non-compliance of the provisions of Section 9 of IBC, 2016. Further, it is also contended that the amount of debt as claimed by the 'Operational Creditor' is time barred and there is no dispute in relation to the amount owed as between 'Operational Creditor' and the 'Corporate Debtor' and in view of the bar, the claim of the 'Operational Creditor' is bound to be dismissed.
(3.) The 'Corporate Debtor' has also filed an additional affidavit on 31.7.2017 bringing to the notice of this Tribunal the following facts in relation to the 'Corporate Debtor' namely: (a) That the 'Corporate Debtor' was declared as the sick industrial company duly registered before the BIFR as case No. 375/2001 and that BIFR vide order dated 19.5.2010 had formed an opinion for winding up of the 'Corporate Debtor' and also forwarding the same to the Hon'ble High Court of Delhi. (b) That against the said order of the BIFR dated 19.5.2010, the 'Corporate Debtor' had preferred an appeal to the Appellate Authority namely AAIFR in "Appeal No. 195/2010 which was pending before the Appellate Authority for a considerable time. However, ultimately it was dismissed vide order dated 9.12.2015 and in the circumstances the order of BIFR dated 19.5.2010 stands restored as even the restoration application before the Appellate Authority also got dismissed as filed by the 'Corporate Debtor'. Hence the position as of date as stated by the 'Corporate Debtor' is that the recommendation of BIFR for winding up before the Hon'ble High Court stands and in the circumstances taking into consideration the Notification No. GSR/119(E) issued by the Central Government dated 7.12.2016 winding up to be considered by the Hon'ble High Court of Delhi.;