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TMI Blog2017 (6) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... he application has been filed by M/s. Alcon Laboratories (India) Private Limited (hereinafter referred to as "Operational Creditor"), having its registered office at Third floor, Crescent-4, Prestige Shantiniketan, Whitefield. Bengaluru-560048, against M/s. Vasan Health Care Private Limited (hereinafter referred to as "Corporate Debtor") having its registered office at No.70, Dr.Radhakrishnan Salai, Westminister Complex. Mylapore, Chennai-4. 2. It has been stated in the application that the Operational Creditor is engaged in supply of certain diagnostic equipments, eye care pharma and vision care products for which the corporate debtor approached the operational creditor in the year 2008 for supply of such products for which the operationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid in the period between 15.1.2016 and 10-2-2016. Subsequently, an agreement of milestone dated 7-4-2016 was executed between the operational creditor and the corporate debtor wherein it has been expressely admitted and acknowledged by the latter that a total outstanding amount of Rs. 94,74,46,921/- is payable to the former, which the corporate debtor undertook to pay in instalments. A hyphothecation agreement was also entered into between the parties which formed the part of milstone agreement (available at Annexure P10). As per clause II of milestone agreement, it was also agreed by the Corporate Debtor that failure to pay any one instalment would give rise to serious default for which the Corporate debtor would be liable to pay the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised objections with regard to the maintainability of the application, inter alia, on the following grounds :- I) The statutory notice issued under clause (a) of sub-rule (1) of Rule 5 of the IBC (Application to Adjudicating Authority) Rules 2016 under section 8 of IBC 2016 is not in accordance with Form-3 as provided and was not sent by Operational creditor itself; II) The application is not in accordance with Form-5 as provided under Sub-rule (1) of Rule 6 of the IBC (Application to adjudicating Authority) Rules. 2016 III) The item supplied by the operational creditor are still under the ownership of operational creditor as per the Hypothecation Agreement dated 7.4.2016 and dispute if any was to be resolved through consultation and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure, and hence directory. It could be expressed in other words that the 'Forms' for notice and application as prescribed under the Rules are for providing/incorporating necessary informations, which are required under the law. Thus, the substance is more important than the 'Form" and, moreover, there is no irregularity in the statutory notice sent and the application filed. The next issue raised is with regard to the hypothecation agreement. In this regard, it is a normal business practice being followed that unless the entire payment/consideration is paid by the buyer, the sellers will have lien over the goods supplied, but that does not mean that the corporate debtor is not under obligation to make the payment for the supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate insolvency resolution process, because the Hon'ble High Court has not passed any order for winding up of the corporate debtor and no Official Liquidator has been appointed. Therefore, this objection is also rejected. 6. It is admitted fact that no reply has been given by the corporate debtor. A specific query has been raised across the Bench that as to why the reply to the notice has not been given by the corporate debtor, the counsel for corporate debtor at the first instance attempted to give some explanation but turned to admit that the reply to the notice has not intentionally been given. The counsel for operational creditor also submitted that he has filed an affidavit proposing Shri V. Mahesh as an interim insolven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in Section 14 of the IBC 2016. We order to prohibit all of the following, namely : (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any Court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respet of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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