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TMI Blog2018 (2) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... to his antecedents. The Interim Resolution Professional has filed necessary declaration in accordance with the IBBI Regulations and the provisions of the Code. In pursuance of Section 13(2) of Code, we direct that Interim Insolvency Resolution Professional shall immediately on his appointment make public announcement with regard to admission of this application under Section 7 of the Code. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of the moratorium flows from the provisions of Section 14(1)(a), (b), (c) & (d). - (IB)-124(PB)/2017 - - - Dated:- 8-1-2018 - MR. M.M. KUMAR AND MS. DEEPA KRISHAN, JJ. For The Petitioner : Rajat Jariwal, Sahil Narang and Daniel George, Advs. Fot The Respondent : Nikhil Nayar, Divyanshu Rai, Darshan Mehta and Ms. Smriti Shah, Advs. JUDGMENT M. M. KUMAR, PRESIDENT This is an application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The petitioner claims that it is an Operational Creditor and the respondent is a Corporate Debtor . T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. A sum of ₹ 1,19,13,256/- is due and payable under the Revised Agreement. The total outstanding liability which is due and payable under the aforesaid LSA and Revised Agreement along with a cumulative interest works out to be ₹ 1,67,81,106/- (Rupees One Crore Sixty Seven Lakhs Eighty One Thousand One Hundred and Six Only). Copy of calculation sheets have been placed on record (Annexure-O to P). 8. The Operational Creditor has also attached various emails exchanged between both the parties wherein the Corporate Debtor has acknowledged its liability to repay the amounts due under the aforesaid agreements which is very much apparent from the emails exchanged between 19.02.2015 and 21.02.2015. Moreover, vide email dated 25.08.2015, the Operational Creditor had requested the Corporate Debtor to resolve the pending payment issues. 9. In continuance of the correspondence exchanged between the parties, the Corporate Debtor had on 09.10.2015 specifically and categorically assured and undertaken to commence payments of outstanding amounts. Thereafter, on 17.11.2015 and 09.01.2016 the Operational Creditor had repeatedly written to the Corporate Debtor requiring it to clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the date of default. Those documents are as under:- (1) A copy of the liquid supply agreement between Inox and TFC dated 29.03.2012 (i.e. the LSA) annexed herewith and marked as Annexure-II/A. (2) A copy of the equipment license agreement between Inox and TFC dated 29.03.2012 (i.e. the ESA) annexed herewith and marked as Annexure-II/B. (3) A copy of the agreement dated 01.04.2014 along with General Terms and Conditions between Inox and TFC (i.e. the Revised Agreement) annexed herewith and marked as Annexure-II/C. (4) A copy of the Email dated 19.02.2015 sent by the representatives of Inox to the representatives of TFC annexed herewith and marked as Annexure-II/D. (5) A copy of the Email dated 21.02.2015 sent by the representatives of Inox to the representatives of TFC annexed herewith and marked as Annexure-II/E. (6) A copy of the Email dated 21.02.2015 sent by the representatives of TFC to the representatives of Inox annexed herewith and marked as Annexure-II/F. (7) A copy of the Email dated 25.08.2015 sent by the representatives of Inox to the representatives of TFC annexed herewith and marked as Annexure-II/G. (8) A copy of the Email da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k account where deposits are made, or credits received normally by the Operational Creditor in respect of the debt of Corporate Debtor is annexed herewith and marked as Annexure-III. (23) A copy of proof of payment of fee annexed herewith and marked as Annexure-VI. 15. On behalf of the petitioner it is asserted that by way of e-mails exchanged between both the parties during 19.02.2015 and 21.02.2015, the Corporate Debtor admitted its liability to repay the amounts due under the LSA ELA. It is further submitted that in continuance of the correspondence exchanged between both the parties, the Corporate Debtor had on 09.10.2015 specifically and categorically assured and undertaken to commence payments of outstanding amounts. To extinguish such liability in part, the Corporate Debtor issued a cheque on 11.01.2016 bearing No. 006274 for a sum of ₹ 49,35,977/-. However, upon presenting the said cheque for encashment, the cheque was returned vide return memo with the endorsement that payments had been stopped by the Corporate Debtor. The petitioner has averred that thereafter notice under Section 138 of Negotiable Instrument Act, 1881 dated 15.04.2016 was served upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wards the supply of gases on account of variation in the prices of diesel and power, same ought to have been taken into consideration by the Operational Creditor. He further submits that during the period of 30th November, 2012 and 16th April, 2015 on account of the losses suffered by the Corporate Debtor due to delays and shortages in supply of the aforesaid gases, the Corporate Debtor has issued several debit notes to the Operational Creditor for a cumulative amount of ₹ 32,43,897/- but same has not been considered by the Operational Creditor. He has also argued that the cheque was given to the Operational Creditor only as a security measure pursuant to the installation of the machinery in the factory premises of the Corporate Debtor and it was agreed between the parties that the said cheque would be returned to the Corporate Debtor upon the removal of the machinery from the Corporate Debtor s plant in Silvassa and on 09.02.2016 the Operational Creditor un-installed and took back the said machinery from the Corporate Debtor s factory premises but inspite of that breaching the aforesaid pledge, cheque was presented by the Operational Creditor. 18. On behalf of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly argued that there is a dispute pending with regard to the amount of debt claimed. In that regard Mr. Nayar has made a reference to the reply dated 04.04.2017 to the demand notice sent by the petitioner under Section 8 of the Code on 28.02.2017. According to Mr. Nayar there is element of escalation charges in the invoices raised showing variation on account of change in cost of power and diesel and the question regarding debit notes have also been raised. 22. However, the aforesaid submission made by the learned counsel is devoid of merit because in para 6 of the replication it has been categorically controverted that the issue concerning escalation and debit notes have never been raised and it is merely a figment of imagination. According to learned counsel for the petitioner there is nothing on the record to show or substantiate the aforesaid argument. In that regard the attention of the Bench has been drawn on the reply to the notice issued under Section 434 of the Companies Act, 1956 on 07.08.2016 where no such stand has been taken. Likewise, a reliance has also been placed on the reply dated 12.05.2016 to the notice issued under Section 138 of Negotiable Instrument Act. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we any money. In e-mails the liability to pay is conceded and thereafter cheque was issued which is dishonoured. Therefore, we are not persuaded to accept that there is a plausible contention showing the existence of dispute and the argument raised in that regard is hereby rejected. 24. The pendency of the petitions before the Hon ble Delhi High Court as mentioned in para 13 of this order would not stand in the way of triggering the process because the Hon ble Appellate Tribunal in the case of Unigreen Global (P.) Ltd. v. Punjab National Bank Ors., Company Appeal (AT) (Insolvency) No. 81 of 2017 decided on 01.12.2017 as well as in the case of Forech India (P.) Ltd. v. Edelweiss Assets Reconstruction Co. Ltd. [Company Appeal (AT) (Insolvency) No. 202 of 2017, dated, 23-11-2017] has taken a view that no application under Sections 7, 9 10 of IBC, 2016 would be maintainable in case a liquidation order has been passed in respect of the same Corporate Debtor in winding up proceedings either by the High Court or by the Tribunal. In that regard reliance has been placed on the ineligibility clause in Section 11(d) of the IBC and the meaning of the word winding up given in Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor . 29. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. These would include supply of water, electricity and similar other supplies of goods or services. 30. The Interim Resolution Professional shall perform all his functions religiously and strictly as are contemplated, inter alia, by Sections 15, 17, 18, 19, 20 21 of the Code. He must follow best practices available in the discipline of Insolvency even borrowing from others jurisdiction provided such practices are suitable to the conditions of this Country. It is further made clear that a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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