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Brand Realty Services LTD V Sir John Bakeries India LTD
Brand Realty Services LTD V Sir John Bakeries India LTD
Parties: (Pg. 3)
Relief Sought:
a. To admit the application and pass an order for initiating the corporate
insolvency resolution process under Section 9 of the Insolvency and
Bankruptcy Code, 2016 (“Code”);
b. To appoint an Interim Resolution Professional in terms of Section 16 of the
Code;
c. To cause a public announcement of the initiation of the Corporate insolvency
resolution process and calling for submission of claims under Section 15 of the
Code;
d. To declare a moratorium in terms of Section 14 of the Code in terms of Section
13 of the Code.
GROUNDS:
Operational Creditor:
A. The Corporate Debtor has defaulted in making the payment of the operational
debt to the Operational Creditor; (Page no. 6)
B. The Demand Notice in Form 4 of the Insolvency and Bankruptcy (Application
to Adjudicating Authority) Rules, 2016 has been delivered by the Operational
Creditor to the Corporate Debtor, demanding the payment of the operational
debt; (Page no. 6)
C. The Corporate Debtor has duly received the demand notice sent by the
Operational Creditor and the Corporate Debtor replied to the same on
25.05.2019, which was outside the stipulated period of ten days to the
Operational Creditor. (Page no. 6)
Corporate Debtor:
GROUNDS REFERENCE
The Corporate Debtor has never admitted as ‘debt’ any amount Page no. 2 of
being due or payable to the Applicant. There are disputed the Reply
questions of facts in the present case that can only be
determined after a full-fledged trial, which cannot be conducted
before the NCLT.
The Director of the Applicant and authorized signatory of this Page no. 3 of
Application, i.e., Mr. Kamal Manchanda, was a Director of the the Reply
Corporate Debtor for a brief period of time, having access to
signed cheques, crucial documents, etc., of the Corporate
Debtor. The cheques of HDFC Bank, placed on record by the
Operational Creditor in its Application, as Annexure-E (Page
4
The bills raised by the Operational Creditor, forming the basis Page no. 7
of the Application, suffer from major inconsistencies. One such and 8 of the
Bill, on page no. 59, charged a sum of Rs. 20,06,000/- for Reply and
consultancy services in a State where the Corporate Debtor has Page no. 59 of
no presence or scope of establishment/expanding. None of the the Petition
purported bills bears any acknowledgement of receipt from the
Corporate Debtor, because of the fact that they were never
served on the Corporate Debtor but were merely recently
created and placed on record to play fraud on the Hon’ble
NCLT.
There was a deficiency in services provided by the Operational Page no. 10 of
Creditor, the foremost being that the Operational Creditor the Reply
caused the Corporate Debtor to take on lease a premises
situated in Ghaziabad, Uttar Pradesh, of which the title was in
dispute, due to which the Corporate Debtor’s store was
suddenly closed, leading to not only loss in revenues, but also
brand value.
The Corporate Debtor is a solvent company, whose assets are Page no. 11 of
more than its liabilities in the Balance Sheet, and has an the Reply
adequate cash flow. Insolvency proceedings are initiated
against those companies where there is an apprehension that
the insolvency is the only recourse to recover its dues.
Insolvency proceedings should not be used as a substitute for
debt enforcement procedures.
GROUNDS REFERENCE
The Corporate Debtor has admitted in Clause 14 of their Reply Page no. 2 of
that the Account Settlement Agreement dated 15.06.2018, was the Rejoinder
executed by Mr. Abhishek Kumar, the main Director of the
Corporate Debtor. The Agreement shows that the stamp papers
for the agreement were purchased by the Corporate Debtor, the
6
Judgements