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TMI Blog2018 (2) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... at Annexure R-1 attached with the objections. The application filed in Form No.5 is complete in all respects as the required information has been furnished. The petitioner has also complied with various clauses (a), (b) and (c) of Section 9 (3) of the Code as already discussed. The petitioner cannot be forced to buy goods from the respondent-corporate debtor and it has every right to claim the outstanding amount which is overdue. The petitioner admittedly stopped making purchases from the respondent-corporate debtor from May 2017 and sent the demand notice under Section 8(1) of the Code which would have been a sufficient alert for the respondent, to repay the outstanding amount. The respondent cannot raise a voice to say that there was no term fixed for payment for the outstanding amount on the ground that the transactions between the parties continued in the normal course of business since 2012 and that various payments have been made from time to time as reflected from the ledger account of both the parties. The above contention cannot be said to raising a 'dispute' which may be covered within the definition of the term as defined in sub-section (6) of Section 5 of the Code. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorised share capital of ₹ 1,20,50,00,000/- and paid up share capital ₹ 1,12,31,82,800/-. The registered office of the respondent-corporate debtor is at Lalru, Derabassi Sub-Division in the State of Punjab and, therefore, the matter falls within the territorial jurisdiction of this Tribunal. 3. The petitioner-operational creditor, on demand and request of the respondent-corporate debtor had been supplying goods/materials to the respondent-corporate debtor as per the invoices/bills (Sales) and thereafter against entire outstanding payment of the supply of goods/materials, there was an adjustment/set-off in the books of account of the operational creditor as payment/part payment of the entire outstanding amount by way of purchase of items by the corporate-debtor as per the summary statements/calculation sheet attached at Annexure A-3. All the invoices raised are for the period from 06.09.2012 to 11.05.2017. The payments/part payments received from the corporate-debtor from time to time were duly debited and credited on regular basis in the running account of the corporate-debtor being maintained by the petitioner-operational creditor. There was balance amount in def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the financial institution in terms of Section 9 (3) (c) of the Code. In compliance therewith, the petitioner-operational creditor filed latest certificate dated 30.11.2017 from Axis Bank that no amount since 06.11.2017 has been deposited by the corporate-debtor in the account of the operational creditor. This certificate Annexure A is attached with the affidavit dated 05.12.2017 of the proprietor of the petitioner concern. This certificate, therefore, establishes that there is no deposit made by the corporate-debtor upto the date of filing of the instant petition, after the demand notice was sent. 8. Copy of this application was despatched by the operational creditor to the corporate-debtor on 27.11.2017 as per the postal receipt at page 518 of the paper book in order to comply with the requirement of rule 6 (2) of the Rules. 9. When the matter was listed on 29.11.2017, notice was directed to be issued to the corporate-debtor for 14.12.2017 by speed post as well as at the e-mail address of the respondent corporate-debtor available on the master data. The petitioner filed affidavit of service dated 05.12.2017 enclosing therewith copy of the postal receipt dated 04.12.2017 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce in view of the tracking report of the postal department showing delivery of the notice to the respondent on 07.11.2017. There is no averment in the objections that the address of the corporate-debtor as furnished by the operational creditor was inicorrect. Rather, there is no challenge with regard to the delivery of the entire paper book, which was sent at the time of filing the instant petition and also receipt of notice of the instant petition issued by the Adjudicating Authority at the same address. Anyhow, the tracking report of the postal department with regard to delivery of the demand notice is the conclusive proof of the delivery and this objection seems to have been taken just for the sake of it. 16. The resolution process can be initiated on occurrence of the default by the corporate-debtor as per Section 8(1) of the Code. Admittedly the respondent-corporate debtor has committed default as according to the respondent itself, there is an outstanding liability of ₹ 68,20,235/- as on 11.05.2017 as per its own ledger account as at Annexure R-1 attached with the objections. The application filed in Form No.5 is complete in all respects as the required information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the mutual understanding. It is further submitted that the petitioner unilaterally withdrew from the arrangements of buying Yarn from the corporate debtor which it had been doing for the past several years. 20. The ledger accounts furnished by both the parties show that the parties have continued business transactions since the year 2012. From the ledger accounts relied upon learned counsel for petitioner contended that till 25.11.2015 the respondent has been purchasing the goods from the petitioner and by that time the outstanding amount was ₹ 1,68,70,217/- and the respondent being in financial difficulty, the petitioner started purchasing Yarn from the respondent and this way, purchase of Yarn was made on various occasions apart from receiving part payments. The last sale made by the operational creditor, according to the learned counsel as reflected from the record to the respondent is dated 25.11.2015 and thereafter, the petitioner started purchasing material from the respondent-corporate debtor and the part payments were adjusted. The above factual position could not be disputed by the learned counsel for respondent from the records. 21. I am of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Form No.2 which is found complete in all respects. There are no disciplinary proceedings pending against him. He is not serving as Interim Resolution Professional/Resolution Professional in any proceedings before any National Company Law Tribunal. 24. One of the objections raised by the corporate debtor is that there is concealment of material fact by the operational creditor with regard to the purchases made by the petitioner from the respondent. I am unable to agree to the above contention as there is a categorical assertion of the petitioner that the goods/materials were supplied as per the invoices/bills (sales) to the corporate debtor and thereafter against the entire outstanding payment of supply of goods/materials there was adjustments/set-off in the books of account of the operational creditor as payments/part payments of entire outstanding amount by way of purchase of items of corporate debtor as per the summary statement. So, there is no force in the contention that there is concealment of the material facts. 25. In view of the above, instant petition deserves to be admitted. The instant petition is admitted declaring moratorium prohibiting all of the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor' shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the 'Code', including taking control and custody of the assets over which the 'Corporate Debtor' has ownership rights recorded in the balance sheet of the 'Corporate Debtor' etc. as provided in Section 18 (1) (f) of the 'Code'. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the 'Corporate Debtor'; (iv) The Interim Resolution Professional shall strictly act in accordance with the 'Code', all the rules framed thereunder by the Board or the Central Government and in accordance with the 'Code of Conduct' governing his profession and as an Insolvency Professional with high standards of ethics and moral; (v) The Interim Resolution Professional shall endeavour to constitute the Committee of Creditors at the earliest but not later than three weeks from the date of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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