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TMI Blog2017 (8) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... edings 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 property is occupied by or in the possession of the corporate debtor. The supply of goods and essential services to the Corporate Debtor shall not be terminated or suspended or interrupted during moratorium period. The moratorium order in respect of (i), (ii), (iii) and (iv) above shall not apply to the transactions notified by the Central Government. The order of moratorium shall not apply to such transactions that might be notified by the Central Government in consultation with any financial sector regulator in view of sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant. 4. In response to the notice issued by this Adjudicating Authority, Respondent appeared through learned Counsel and filed Reply. In the Reply, the following are the objections taken by the Respondent. 4.1 The Hon'ble High Court of Gujarat in Company Petition No. 297 of 2016 vide its orders dated 28.11.2016 and 6.12.2016 ordered for liquidation proceedings and appointed Official Liquidator to take over charge and possession of assets of Ardor International Ltd. It is stated by the Respondent that Registered Office of Ardor International Limited and the Registered Office of the Respondent, i.e., Ardor Global Private Limited are situated in one premises and in the process of inventory, Official Liquidator had taken possession of all the books and account and registers of the Respondent Company also. Further it is stated that Respondent wrote a letter dated 2.2.2017 to the Official Liquidator to give access of the records and registers of the Respondent company. 4.2 The second objection is, that the dollar conversion rate in calculating the due amount shall be taken into account on the due date but not on the date of demand notice. If the dollar rate is taken o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant named the Insolvency Resolution Professional; applicant filed Deed of Guarantee, copies of Invoices, ledger accounts of Ardor International Ltd., and Bank account of the Applicant Company. There are no defects in the Petition. In the case on hand, admittedly there is an occurrence of default in repayment of amount to the Applicant, who is an Operational Creditor who supplied goods to Ardor International Ltd., for which Respondent Company stood as a guarantor. Therefore, Respondent Company is a Corporate Debtor. The debt due to the Operational Creditor from the Corporate Debtor can be classified as an operational debt since it primarily arises out of supply of goods and by virtue of Guarantee Deed. 9. The Registry brought to the notice of this Authority on 18.7.2017, on which date the matter was posted for pronouncement of the Order, that a Caveat Application No. 10 of 2017 filed by Central Bank of India, Ahmedabad relating to this matter is pending. Therefore, this Authority directed the Applicant to serve notice on the Central Bank of India and file proof of service. Accordingly, Applicant served notice and filed proof of service. The matter is reopened. This Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards supply of goods to it not only as a guarantor but also as sole principal obligor. Further, a perusal of the letter dated 14.12.2016 addressed by Ardor Global Private Limited to the Applicant shows that Ardor Global Private Ltd., undertook to pay the claim of the Applicant for supply of goods to Ardor International Limited. 13. Therefore, when the definition of the word 'claim' in Section 3 of the Code is inserted into the definition of 'operational debt' in sub-section (21) of Section 5, it includes the amount payable under the Guarantee Agreement also. No doubt, in case of 'financial debt', Section 8 Clause (i) specifically says about the liability in respect of any of the guarantee for any of the items referred to in sub-clauses (a) to (h). There is no such specific clause in case of 'operational debt'. But, reading the definition of 'claim' into the definition of 'operational debt', it could only mean that the amount due from the buyer of the goods, and which is due to the seller of the goods and is guaranteed by the Guarantee Agreement, is also an 'operational debt'. 14. The provisions of the Contract Act cle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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