R. Varadharajan, Member - (1.) Seeking to unfold the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, namely, Petrolube India Limited, the Applicant herein in the capacity of Operational Creditor under the provisions of Insolvency and Bankruptcy Code, 2016 (IBC,2016) has filed this Application. In relation to transactions giving rise to the operational debt, it has been stated in Part IV of the Application that the debt in a sum of Rs.8,82,54,959.55 arose out of amount due towards supply of white oil which are duly supported by quotations, purchase orders and invoices raised as well as LRs evidencing delivery of goods supplied at the stated locations based on the purchase orders of the Corporate Debtor. In the Application under Part IV it is also disclosed that the default in payment of the debt commenced from 3.7.2016 and continues as of date. It is also further averred that towards the payment of the amount owed, post dated cheques were issued by the Corporate Debtor as well as the same were re-issued and upon re-issue and presentation, the cheques got dishonored and that the cheques were issued by way of creation of security on 16.1.2016 and in view of default in payment of debt which commenced from 3.7.2016, the same was presented for payment which resulted in the dishonor of cheques, instead of being honoured by the Corporate Debtor whichpoints out to default. In view of non-payment of the defaulted amount under Part-V of the Application, it is averred that notice under Section 8 of IBC,2016 was issued which was also served upon the Corporate Debtor. It is also averred in the Application that prior to the issue of notice under Section 8 dated 3,8.2017, legal notice was issued on 7.2.2017 which was also acknowledged by the Corporate Debtor in addition to notice issued under Sections 271 and 272 of Companies Act, 2013 dated 7.4.2017 being earlier dispensation with respect to outstanding amount due to the Operational Creditor, which was duly acknowledged but without any avail. In view of the repeated reminders and non-payment of the debt due to the Operational Creditor resulting in default by the Corporate Debtor, the Application has come to be filed before this Tribunal.
(2.) The matter was first listed before this Tribunal on 13.9.2017 and on which date this Tribunal had directed the Applicant, namely, the Operational Creditor to file proof of service in relation to the service of the Application at the registered office of the Corporate Debtor and to this effect an affidavit of service was directed to be filed along with the tracking report. The matter was posted on 11.10.2017 on which date it was brought to the notice of this Tribunal by the Ld. Counsel for the Applicant that an advance copy of the Application had been dispatched by speed post to the Corporate Debtor and that the same has also been duly served on 6.9.2017 itself as evidenced from the tracking report filed as Annexure 'A' to the affidavit of service filed by the Operational Creditor dated 28,9.2017. It is also brought to the notice of this Tribunal that along with the affidavit of service the Company's Maser data as on 26.9.2017 annexed (as Annexure 'B') disclosing the registered office address to which service has been effected is also reflected therein. In the circumstances, it is submitted by the Ld. Counsel for the Applicant that service to the Corporate Debtor is complete. In addition to the above, it is also brought to the notice by the Ld. Counsel for the Applicant/Operational Creditor that as Annexure *' to the above affidavit of service, a certificate from the Banker's as required under Section 9(3) (c) of IBC,2016 has also been filed supporting the claim of the Applicant regarding the non-receipt of unpaid amount from the Corporate Debtor in a sum of Rs.8,82,54,959.55 as claimed by the Applicant in the Application. On 24.10.2017 it was brought to the notice of this Tribunal that an Application has been filed on 13.9.2017 seeking for condonation of delay in filing the said certificate from the Banker's under the provisions of Section 9(3) (c) of IBC,2016 wherein the delay as sought to be explained in producing the Banker's certificate under Section 9(3) (c) of IBC,2016 arose due to the Applicant and its Bankers being situated at Mumbai and the correspondence on the one hand between the Bankers and the Applicant and on the other between the Applicant and his Counsel at Delhi took some time and that the Applicant was ultimately able to obtain the Banker's Certificate after repeated reminders and representation only on 21.9.2017 and that it was received by the Applicant on 23.9.2017 and hence a delay of 7 days has occasioned which may be condoned. The said Application has been filed bearing CA-55/C-III/ND/2017 dated 09.10.2017.
(3.) Based on the Application and taking into consideration the decision of Hon'ble Supreme Court in M/s. Surendra Trading Company -vs- Juggilal Kamlapat Jute Mills Company Limited and Ors. in Civil Appeal No.8400 of 2017 wherein it has been held in effect that subject to reasonable causes being shown by an Applicant in relation to the mandatory compliances as required to be made either under the provisions of Sections 7 or 9, this Tribunal can condone the delay in rectifying the defects and accept the same on record and taking into consideration the above decision the application was allowed and the delay was duly condoned. In view of compliance of service of notice on the Corporate Debtor, this matter was taken up for hearing on 15.11.2017 and ultimately was heard on 9.1.2018 and in the absence of the Corporate Debtor who had failed to put in appearance and was reserved for orders on the said date.;