9911796707
TMI Blog2018 (2) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... acts that are necessary for disposal of this Petition. 3.1 In the year 2008, Bharat Sanchar Nigam Ltd., (BSNL) awarded contract for supply of certain IT and Networking materials, equipment and support services etc., to Telecommunication Consultant India Ltd. (TCIL). TCIL in turn floated tenders for supply of related materials for implementation of BSNL Project. The contract was awarded to ORG Informatics Limited ["ORG" for short]. ORG approached MOKA Technology Services Ltd. ["MOKA" for short] (earlier known as "TVS Net Technologies Limited"). A Memorandum of Understanding dated 21.8.2008 was entered into between MOKA and ORG. MOKA supplied materials/equipment worth Rs. 24,14,58,252/- against the purchase orders placed by ORG for which MOKA raised Invoices-cum Delivery Challans from time to time. The said Invoices-cum-Delivery Challans were duly received and acknowledged by ORG. ORG also issued a Corporate Guarantee dated 24.9.2008 for performance security and accordingly issued 11 post-dated cheques worth Rs. 21,65,41,034/-. Mr. Kalyan Mazumdar, Director of MOKA acknowledged the liability for the Invoices raised by MOKA from time to time vide his e.mail dated 27.1.2009. MOKA depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as become final. 3.6 Petitioner issued Demand Notice dated 21.6.2017 to the Respondent and it was served on the Respondent on 30th June, 2017. The Petitioner filed copy of Bank statement from 1.12.2016 to 20.7.2017 of State Bank of India, Madurai of the Petitioner-Operational Creditor. Petitioner also filed Certificate of the financial institution of the Operational Creditor. Petitioner also filed Affidavit under Section 9(3)(b) of the Code. Petitioner filed copy of Memorandum of Understanding dated 21.8.2008; copy of Agreement dated 20th April, 2012; copy of Supplementary Agreement dated 17.11.2012; copy of Assignment Agreement dated 14.11.2013; and copy of Arbitration Award dated 9.12.2016. Petitioner also filed copy of Demand Notice and copies of Invoices-cum-Delivery Challan. 4. On this Petition, Respondent, having received the Notice, appeared through learned Counsel and filed Objections; 4.1 The Memorandum of Understanding dated 21.8.2008 referred to by the Petitioner was executed between TVS Net Technologies Limited and ORG; the Petition is filed for operational debt allegedly based on equipment/materials supplied by MOKA Technology Services Limited, but no proof is filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of arbitral award. MOKA filed a Petition under Section 9 of the Arbitration and Conciliation Act, 1996 restraining TCIL from releasing payments to ORG. It was dismissed. MOKA preferred an Appeal. The Appeal was also dismissed. (e) Debt Recovery Tribunal, Ahmedabad passed orders restraining TCIL from paying money to ORG. The said fact was conveyed to MOKA. (f) Apart from arbitration and winding up proceedings there are other proceedings pending pertaining to the transaction in question. The amount claimed in the petition is clearly disputed and a dispute evidently existed before issuance of notice under Section 8 of the Code. (g) The Demand Notice is in a defective form. 5. The Petitioner filed an Additional Affidavit stating that TVS Interconnect Systems Ltd., was converted into a Private Limited Company and named as 'TVS Interconnect Systems Private Limited' on 18.11.2015 and in support of it filed Certificate of Incorporation issued by Registrar of Companies. 5.1 It is further stated in the Additional Affidavit that Company Petition No. 274 of 2016 filed by MOKA Technology Services Ltd., against ORG was disposed of as withdrawn on 16.11.2017. No reply is given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operational debt." In the present case, the amount due to MOKA from ORG was subject matter of arbitration proceedings and in the arbitration proceedings, Award was passed in favour of MOKA and against ORG. The amount claimed by MOKA from ORG is towards supply of material and services. Therefore, the amount claimed by MOKA from ORG in the arbitration proceedings is an 'operational debt' but the said operational debt now transformed into an Arbitral Award which after it reached its finality can be put to execution. In this context, it is necessary to refer to Section 8 of the Code. Section 8(2)(a) says about existence of a dispute. No doubt, Section 8(2)(a) says, the Corporate Debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor about the existence of a dispute. However, Section 9(5) enjoins upon the Adjudicating Authority to admit the Petition subject to provisions contained in sub-clauses (a) to (e) of Clause (i) of sub-section (5) of Section 9. Among them sub-clause (d) of Clause (i) of sub-section (5) of Section 9 says, in case no notice of disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But without disclosing that the Assignee under the Agreement dated 14.11.2013 changed its name from Public Limited to Private Limited, issued Notice under Section 8 of the Code and therefore it is not a valid notice. However, the Petitioner, in this case is not seeking initiation of Corporate Insolvency Resolution Process on the basis of the debt assigned to it, but on the basis of the Arbitral Award. Therefore, Petitioner although can be termed as 'Operational Creditor' in respect of the operational debt assigned to it, it cannot enforce the Arbitration Agreement which is in favour of MOKA the Assignor unless there is specific assignment of the arbitral award amount to the Petitioner provided the Award amount is having the characteristics of operational debt. Therefore, the Petitioner being an Assignee under the Assignment Agreement of the operational debt cannot maintain this Petition for recovery of arbitral Award amount which has not been assigned to it. 8. The material on record clearly disclose that as on the date of filing of the Petition, winding up petition being Company Petition No. 274 of 2016 filed by MOKA against ORG was pending before the Hon'ble High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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