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TMI Blog2017 (6) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of the Reference. Section 13 of the Code enjoins upon the Adjudicating Authority to exercise its discretion to pass an order to declare a moratorium for the purposes referred to in Section 14, to cause a public announcement of the initiation of corporate insolvency resolution and call for submission of claims as provided under Section 15 of the Code. Sub-section (2) of Section 13 says that public announcement shall be made immediately after the appointment of Interim Resolution Professional. In the case on hand, simultaneous with the admission order, this Adjudicating Authority is not going to appoint Interim Resolution Professional because the Applicant did not propose the name of Interim Resolution Professional. But, this Adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the Work Agreement, Operational Creditor carried out the work of Bitumen road of Magarkhedi-Bamandi, District Barwani. After completion of work, there is an outstanding amount of ₹ 19,52,943/- along with security deposit of ₹ 32,93,202/- totalling to ₹ 52,46,145/-. The total amount due to Operational Creditor from Corporate Debtor is ₹ 2,89,46,192/-. 5. According to the Operational Creditor, the default occurred on 31.8.2014. The Operational Creditor issued Demand Notice dated 4.4.2017 in Form 3 along with copy of Work Order, copy of Account Statements send by Corporate Debtor to Operational Creditor and TDS Certificate as required by Section 8 read with Rule 5 of the Rules. 6. As per the Track Report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acknowledgment Due on 14.5.2017. None appeared before this Adjudicating Authority on behalf of the Corporate Debtor. Operational Creditor also filed Statement of Accounts of the Bank of the Operational Creditor along with the Audit Report. 7. In order to pass an order under Section 9(5) of the Code, this Adjudicating Authority shall necessarily give a finding on the following aspects: i. Whether the claim is an operational debt or not; ii. Whether there is occurrence of default; iii. Whether notice as required by sub-section (2) of Section 8 was served on the Corporate Debtor; iv. Whether Corporate Debtor within a period of 10 days of the receipt of Demand Notice brought to the notice of Operational Creditor existence of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'operational debt' within the meaning of sub-section (21) of Section 5 of the Code. 11. In order to prove the existence of dispute, Petitioner filed copies of account statement sent by Corporate Debtor to the Operational Creditor and as well as copy of the Work Order. Petitioner also placed on record the Bank Statements of its Bank. From the above said documents, it is clear that Corporate Debtor defaulted in making payment of operational debt. 12. Operational Creditor issued notice as required by Section 8(1) read with Rule 5 of the Rules in e-Form No.3 demanding payment of operational debt. As can be seen from the Track Report filed by the Operational Creditor, the demand notice was served on the Corporate Debtor on 8.4.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of India established under the Code to recommend the name of an Insolvency Professional, against whom no disciplinary proceedings are pending, to this Adjudicating Authority, within ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 any legal right or beneficial interest therein; (iii) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (iv) the recovery of any property by an owner or lessor where such pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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