IN RE Vs. LAKSHMI SOLVENT PVT LTD

JUDGEMENT

(1.) The present company (I & B) petition are fixed today for pronounced of the order in respect of C.P. Nos. 13, 14, 15, 16 and 17 of 2017 as these petitions are based on same / similar nature of facts hence are being disposed of though a common order.

(2.) The reasoned order in detail is recorded separately, the operative portion reads as under.

(3.) As these applications are found complete in terms of Section 9(5) (2) of the Insolvency and Bankruptcy Code, hence deserve admission, we observe and find that there is no repayment of unpaid operational debt despite the invoices for payment were raised by the operational creditors and goods have been delivered to the corporate debtor in terms of its purchase and supply order, thus, the corporate debtor company is in default of making payments of the debts in respect of C.P. No. 13 of 2017, M/s. J.R. Agro Industries Private Limited for Rs. 5,08,43,252/- in C.P. No. 14 of 2017 to M/s. Abhi Agro Industries Private Limited for Rs. 28,59,514/- in C.P. No. 15 of 2017 to the M/s. Jai Lakshmi Solvents Private Limited for Rs. 24,66,392/- in C.P. No. 16 of 2017 to M/s. Arohul Foods Private Limited for Rs. 24,75,178/-and in C.P. No. 17 of 2017 M/s. Rungata Industries Private Limited for Rs. 14,97,879/-. It is apparent from the bank statements furnished and certificates issued by the financial institution that the operational creditors have not received so far full payment of supply of the goods made to the corporate debtor company against which invoices were raised. Further it is found in statutory return and the record of corporate debtor company itself that goods have been purchased and received from operational creditor's and their names are reflected in company's purchase list which was duly prepared by the corporate debtor company and submitted along with its Tax returns to the Commercial Tax Department of the State Government. The amount of debts has neither been received from the corporate debtor company nor from Mr. Dinesh Arora or his concern, pursuant a memorandum of understanding stated to have been entered between the corporate debtor company. That apart this Bench is also of the view that there exists no privity of contract among the operational creditors and other sundry creditor corporate debtors company and Mr. Dinesh Arora with regard to the above stated MOU in question. Therefore, such MOU can not have a binding effect on the operational creditors nor any liability there basis can be fasten to Mr. Dinesh Arora group, nor the operational creditors can be insisted legally to recover the such amount of goods supplied only from Mr. Dinesh Arora or his group of company and not from the present corporate debtor. Because there is no assent of creditors / supplier concern including the present operational creditors/ and other sundry creditors, whose name are shown in the body of the above MOU dated 19.05.2016. Under the sound Principle of Indian Contract Act and as per the illustration (C) given in Section 62 of the Act. It is also a settled legal proposition that a company is a legal person, while the definition of Insolvent person is given in under section 2 (8) of that a person is said to be Insolvent who has ceased to pay his debts in ordinary course of business or cannot pay his debts as they become due is declared to be insolvent. Whether he has committed an act of Insolvency and or not. Hence the present corporate debtor being a corporate person fall within the definition of insolvent as it has committed the default for making payment and an action can be taken against him under section 55 to 58 of the Sales of Goods Act. The Hon'ble Supreme Court in the matter of Shakti Tubes Limited Vs. State of Bihar came to examine the provisions of Section 62 of the Contracts Act and illustration 'C' given therein and observed if there is not assents of a third party, no new contract is said to have entered into between such parties. Further in the matter of Innovative Industries Ltd. Vs. ICICI Bank and another (Hontjle NCLAT Appeal (IB) Nos. 1 & 2 of 2017) , it is held that the change of subsequent agreement does not absolve the corporate debtor from its debt liability. Thus there is no legal sanctity for cessation of its liability in its book accounts on the basis of MOU, which is neither consented to nor agreed by the operational creditors. In the light of above stated decision. We are constrained to feel that the corporate debtor raised only speculative defence of alleged fraud in its company which is illusory and does not finds support from its own statutory return and auditors report and also contrary to its purchase list records maintained by the company. Hence such defence appears to have been raised to avoid payments hence cannot be treated as bonafide one in the light of the Hon'ble Delhi High Court decision in the matter of Olam Agro India Limited Vs. Mother Impex Private Limited,2014 7 HCC 638 and further the decision of Hon'ble Madras High Court decision in the matter of Motorola India Pvt. Ltd. Vs. B P L Cellular Mobile, 2002 2 LW 315.