APT PACKAGING LIMITED Vs. SHEON SKINCARE PVT LTD

JUDGEMENT

(1.) This Petition has been filed by the Petitioner under the provisions of Section 8 and 9 of Insolvency and Bankruptcy Code, 2016 (IBC, 2016) in the capacity of an Operational Creditor seeking for the initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. According to the Petitioner a sum of Rs. 10,78,372/- is due in relation to the goods supplied by the Operational Creditor to the Corporate Debtor commencing from 31.05.2016 till 06.08.2016. It is averred by the Operational Creditor that the Corporate Debtor is engaged in the business of skin care products and in the course of business carried on by the Corporate Debtor, the Operational Creditor had supplied Neem Face Wash,Papaya F/Scrub, Lacto D Tan Cream and such other products which go into the manufacture of skin care products. The supplies were made against orders placed by the Corporate Debtor from time to time and the supplies were effected as per the Buyers Orders placed by the Corporate Debtor as evidenced by the dispatch documents subsequent to which invoices have also been raised for the supplies made by the Operational Creditor to the Corporate Debtor.

(2.) Out of the said supplies made to the Corporate Debtor, it is the claim of the Operational Creditor that a sum of Rs. 10,78,372/- is due from the Corporate Debtor as on 19.06.2017 and a demand notice was sent to the Corporate Debtor demanding payment in respect of unpaid operational debt due from the Corporate Debtor.The demand notice was sent in Form-3, as prescribed under Rule 5 of Insolvency and Bankruptcy(Application to Adjudicating Authority) Rules, 2016 (for brevity called as 'AAA Rules') and that invoices were also attached based on which the payments remained outstanding giving rise to the demand as made by the Operational Creditor. It is stated by the Operational Creditor that the said demand notice dated 19.06.2017 was duly delivered to the Corporate Debtor on 23.6.2017. In addition to the service of the demand notice by post, it is also stated that Form-3 of the 'AAA' Rules alongwith the invoices was also sent by e-mail dated 19.6.2017 to the e-mail ID provided by the Corporate Debtor to the Ministry of Corporate Affairs (MCA) and also as reflected in the website being maintained by MCA in the Master Data of companies including that of the Corporate Debtor. The Operational Creditor through its Director Mr. Arvind Machhar has also filed an affidavit in terms of Section 9(3) (b) of IBC,2016 wherein at Paragraph 6 of the said affidavit it has been stated that the Corporate Debtor has not given any notice relating to a dispute within the meaning of Section 8(2) of IBC,2016 in connection with the unpaid operational debt and the said affidavit is dated 31.07.2017.

(3.) Ld. Counsel appearing for the Operational Creditor also pointed out that in terms of Section 9 (3) (c) of IBC,2016 a certificate from the bankers in relation to the unpaid Operational debt has also been produced wherein it has been stated that a sum of Rs. 10,78,372/- from the Corporate Debtor has not been received to the account of the Operational Creditor. Ld Counsel for the Operational Creditor further points out that even as per the financial statements for the year ending 31.3.2015, it is seen that the Company is suffering a loss to the extent of Rs.13,08,192/- and in relation to the previous years the loss is of Rs.22,61,379/- and that the net worth of the Company is also in the negative. In the circumstances, it is represented by the Ld. Counsel for the operational Creditor that the Corporate debtor is a fit case against whom CIRP is to be initiated as contemplated under the provisions of IBC,2016.