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TMI Blog2017 (6) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Interim Resolution Professional because the Applicant did not propose the name of Interim Resolution Professional. But, this Adjudicating Authority is going to appoint Interim Resolution Professional after the same is recommended by the Insolvency and Bankruptcy Board of India under Section 16(4) of the Code. This order of moratorium shall be in force from the date of order till the completion of Corporate Insolvency Resolution Process subject to the Proviso under sub-section (4) of Section 14. - CP (IB) NO. 20/9/NCLT/AHM/2017 - - - Dated:- 24-5-2017 - Mr. Bikki Raveendra Babu, J. For The Petitioner : Ms. Niketa Mehta For The Respondent : Shashvata Shukla ORDER 1. R.L. Steel Energy Limited filed this Petition under Section 9 of The Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as the Code ] read with Rule 6 of The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as the Adjudication Rules ]. 2. The claim of the Petitioner is that goods were supplied to the Corporate Debtor, namely Shyam Industries Limited as per Invoices dated 28.02.2013; 5.3.2013; 5.3.2013 and 20.3.2013. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor admitted the liability to make payment towards the outstanding dues in respect of the Invoices already raised. In the said Notice Petitioner demanded the Corporate Debtor to pay ₹ 20,97,025/- along with interest at 18% which came to ₹ 14,46,441/- totalling to ₹ 35,43,466/-. 5. Thereafter, again on 18.2.2017, Petitioner issued another Demand Notice attaching copy of Invoice which is in Form No. 4 of the Adjudicating Rules. In reply to the said Notice, the Corporate Debtor issued Reply dated 23rd March, 2017 reiterating about the Settlement Agreement dated 17th January, 2017. 6. This Petition has been filed before this Adjudicating Authority on 11th May, 2017. The matter was listed before this Adjudicating Authority for the first time on 12.5.2017. This Adjudicating Authority directed the Petitioner to file proof of service of demand notice and to serve notice of date of hearing. The matter was again listed on 18.5.2017. Petitioner filed proof of despatch of demand notice by Speed Post. Proof of service of demand notice by E-mail is filed. The Corporate Debtor appeared through his learned counsel and filed Reply. This Adjudicating Authority heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 3,20,000/- by way of RTGS and also issued cheques for the balance amount. This can be treated as confirmation of balance. Therefore, the operational debt claimed is within limitation period. 12. Thereafter, on 17.2.2017 Petitioner issued a Reply to the letter dated 19th January, 2017 and the Reply dated 7.2.2017 to the Demand Notice dated 15.1.2017 wherein the Petitioner denied the Settlement Agreement. In the Notice dated 17.2.2017, Petitioner demanded ₹ 20,97,025/- along with interest at 18% p.a. amounting to ₹ 14,46,441/- totalling to ₹ 35,43,466/-. Thereafter on 18.2.2017 another Demand Notice was issued along with Invoices in Form-4 as provided by Rule 5(l)(b) of the Adjudicating Rules. According to the Petitioner, it was received by the Corporate Debtor on 20th February, 2017. Petitioner filed copy of the Demand Notice sent by Mail to the Corporate Debtor on 18.2.2017. Corporate Debtor gave Reply to the Demand Notice dated 18.2.2017 only on 23rd March, 2017. Here, it is pertinent to point out that Corporate Debtor was supposed to have given Reply to the Demand Notice dated 18.2.2017 within 10 days from the date of receipt of the notice as required by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), there is a clear indication on the part of the deceased saying take the cheque if you accept the proposal, or otherwise return it to me. In the case on hand, in the alleged Settlement Agreement that is not signed by the Petitioner there is no mention in the offer of part payment was made only if the other terms in the deed are accepted. Moreover, Petitioner promptly denied the Settlement Agreement. Therefore, on facts, the said decision is not applicable to this case. The decision in the case of Bharat Sanchar Nigam Ltd. (supra) relates to Section 8 of the Contract Act. It clarifies that Section 8 is based on the principle that if an offer is made subject to a condition, the offeree cannot accept benefit under an offer without accepting the condition. It is further clarified that the offeree cannot take the attitude I shall accept the benefit but reject the condition . First of all in the alleged Settlement Agreement, there is no conditional offer. As already said, the Settlement Agreement is not signed by the Petitioner, more so denied by the Petitioner. Therefore, the above said decision is also not applicable to the facts of the case. 16.1 In this context, it is also n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. This Petition is based upon the 2nd Demand Notice dated 18.2.2017 which is issued in Form-4 of the Adjudication Rules, enclosing the Invoices. Therefore, the plea of the Corporate Debtor that there was a breach of the Settlement Agreement dated 17th January, 2017, which is not signed by the Operational Creditor, cannot be taken into consideration for coming to a conclusion that there is no occurrence of default, as contemplated under Section 8(1) of the Code. In the case on hand, the default is non-payment of debt either wholly or in part as per the Invoices. The Settlement Agreement put forward by the Corporate Debtor is denied by the Operational Creditor. Therefore, it cannot be said that no default of debt occurred and the debt has not become due and payable. Therefore, the findings of this Adjudicating Authority is, there is occurrence of default in payment of operational debt either in whole or in part. No notice was issued by the Corporate Debtor within 10 days from the date of receipt of Demand Notice dated 18th February, 2017. 19. Even assuming that the Reply dated 23.3.2017 is a reply within 10 days from the date of receipt of the Notice, there is no reference to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Adjudicating Authority is not going to appoint Interim Resolution Professional because the Applicant did not propose the name of Interim Resolution Professional. But, this Adjudicating Authority is going to appoint Interim Resolution Professional after the same is recommended by the Insolvency and Bankruptcy Board of India under Section 16(4) of the Code. 22. (a) In view of the above discussion, the Petition is admitted. (b) This Adjudicating Authority hereby order reference to Insolvency and Bankruptcy Board of India to recommend the name of Insolvency Professional against whom no disciplinary proceedings are pending to this Authority within 10 (Ten) days from the date of receipt of reference. (c) This Adjudicating Authority hereby declares moratorium under Section 13(1)(a) prohibiting the following as laid down in Section 14 of the Code; i. 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; ii. transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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