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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 ..... l 15th April, 2017. Petitioner issued first Demand Notice dated 15.1.2017 to the Corporate Debtor demanding payment of Rs. 26,74,481/- towards unpaid amount on the Invoices and Rs. 17,96,816/- towards interest thereon along with the copies of Invoices. On 19th January, 2017 Corporate Debtor addressed a letter stating that as per the discussions with Mr. Sushil Singh, General Manager between 17th January, 2017 to 19th January, 2017, the Settlement Agreement between Petitioner and Corporate Debtor, the settlement agreement was reached on 17th January, 2017. It is also stated in the Reply Notice that as per the account books of the Corporate Debtor, outstanding due to the Petitioner is Rs. 24,00,510/-. It is also mentioned in that letter that they are sending an amount of Rs. 3,20,000/- by way of RTGS to the Petitioner and the balance is only Rs. 20,80,510/- . It is further stated that the balance outstanding amount was divided into 25 cheques of Rs. 80,000/- each and the last cheque which is of Rs. 80,510/- was issued. It is also mentioned that any discrepancy in the outstanding balance will be resolved before 31st March, 2018. Corporate Debtor also enclosed the Settlement Agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her Petitioner is 'Operational Creditor'; iii. Where there is occurrence of default; iv. Whether Operational Creditor delivered Demand Notice on the Corporate Debtor; v. Whether there is existence of dispute and record of pendency of suit or arbitration proceedings; and vi. Whether there is compliance of sub-sections (1) to (4) of Section 9 of the Code. 8. A perusal of the notices clearly goes to show that Petitioner supplied goods to the Corporate Debtor. Therefore, the claim of the Petitioner is an operational debt. 9. Since the operational debt is due to the Petitioner from the Corporate Debtor, Petitioner is an 'Operational Creditor'. A perusal of the Invoices, details of transactions, Certificate issued by Punjab National Bank on 15.4.2017; Statement of Account of the Petitioner Company; the Reply Notice dated 19th January, 2017 issued by the Corporate Debtor to the Petitioner/Operational Creditor clinchingly establishes the occurrence of default. 10. Petitioner issued the first Demand Notice on 15.1.2017 claiming Rs. 26,74,481.75 ps. towards Unpaid Invoices and Rs. 17,96,816.40 ps. towards interest. The Reply to the said noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2017. Demand Notice dated 18.2.2017 was sent by Speed Post and as well as by e-Mail on 18.2.2017 itself. Therefore, the notice dated 23rd March, 2017 issued by the Corporate Debtor was not within 10 days from the receipt of Demand Notice dated 18.2.2017. 14. In any of the Reply Notices so far issued by the Corporate Debtor, the Corporate Debtor had not referred to pendency of any suit or arbitration proceedings filed before the receipt of the first Demand Notice dated 15.1.2017 or second Demand Notice dated 18.2.2017. But Corporate Debtor raised a dispute regarding the amount claimed and put forward the Settlement Agreement dated 17th January, 2017. A perusal of the copy of the Settlement Agreement filed along with the Petition discloses that it is not signed by any one on behalf of the Petitioner Company. Moreover, Petitioner Company in its Notice dated 17th February, 2017 denied the alleged Settlement Agreement. It is also stated that no such Settlement Agreement was entered into. 15. It is contended by the learned Counsel for the Corporate Debtor that the very acceptance of RTGS amount and the acceptance of the cheque amounts to acting as per the Settlement Agreement, and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led the cheque for Rs. 10,00,000/- issued by it on 10.5.2015. It is a fact that all those meetings, even according to the Corporate Debtor were before the Settlement Agreement was entered into on 17th January, 2017 (Refer to the notice of the Corporate Debtor dated 19th January, 2017) and therefore there is no need to consider the Minutes of the Meetings dated 7.4.2015 and 5.5.2015. Those Meetings are held for the purpose of entering into an understanding between the Petitioner and Corporate Debtor for repayment of amounts outstanding as per Invoices. 17. Coming to the legal aspect, the question is whether the alleged Settlement Agreement dated 17th January, 2017 which is not signed by any one on behalf of the Petitioner/Operational Creditor can be treated as an Agreement or not. The argument of the learned Counsel for the Corporate Debtor, relying upon the decisions referred to above is that when once the Operational Creditor accepted the payment of Rs. 3,20,000/- and also encashed some of the cheques, it must be deemed that the Operational Creditor accepted the offer and it becomes an Agreement, and unless breach of such Agreement is there, it cannot be said that there is an occ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (4) of Section 9 of the Code. Here, it is pertinent to refer to sub-section (3) of Section 16 of the Code. It says, in an application for corporate insolvency resolution process filed by an operational creditor, if there is no proposal for an interim resolution professional is made, the Adjudicating Authority shall make a reference to the Board, namely Insolvency and Bankruptcy Board of India, for the recommendation of an insolvency professional who may act as an interim resolution professional within ten days from the date of receipt of the reference. Therefore, on the ground that Operational Creditor did not comply with sub-section (4) of Section 9 of the Code, the Petition cannot be rejected. This Adjudicating Authority shall follow the procedure laid down under sub-section (3) of Section 16 of the Code, and the Insolvency and Bankruptcy Board of India shall follow sub-section (4) of Section 16 of the Code. Therefore, this Adjudicating Authority, by this order passed under sub-section (5) of Section 9 of the Code, is admitting this Petition. This Adjudicating Authority is also of the view that it is necessary to make a Reference to the Insolvency and Bankruptcy Board ..... X X X X Extracts X X X X X X X X Extracts X X X X
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