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TMI Blog2018 (5) TMI 1613X X X X Extracts X X X X X X X X Extracts X X X X ..... debt is in existence as on the date of filing these Company Petitions. Whether occurrence of default is there or not? - Held that: - the basic document for commencement of jural relationship is MSA, in that MSA itself there is a clause (24.1) saying that any alteration or modification to MSA will arise only when a new instrument has been entered into between the parties. Since no such instrument has been executed, it can never be called as novation. Moreover, mere assurance or promise of clearing liability by one party to other party can never become a novation, therefore, this novation argument propounded by the counsel of Corporate Debtors is no doubt novation but bereft of any merit - the default in making repayment has remained the same till date as before, therefore, this Bench hereby holds that Ericsson has proved that not only debt is in existence but also the default. Whether any dispute is in existence as on the date of receipt of section 8 notice by these Corporate Debtors? - Held that: - there are two issues, one is the claim made by the Ericsson against the corporate debtors, another is a dispute before Arbitral Tribunal in respect to termination of MSA. Termination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /b Naik Naik & Co. Mr. Gaurav Joshi, Sr. Counsel And Mr. Fredon Devitre, Sr. Counsel Mr. Hormuz Mehta Mr. Soumitra Majundar i/b J. Sagar Associates COMMON ORDER Per: B.S.V. Prakash Kumar, Member (Judicial) These are three separate Company Petitions 1385/2017 against Reliance Infratel Ltd, (RITL); 1386/2017 against Reliance Telecom Ltd. (RTL), and 1387/2017 against Reliance Communications Ltd. (RCom) filed by the same Petitioner, namely Ericsson India Pvt Ltd (in short "Ericsson") u/s 9 of Insolvency & Bankruptcy Code, 2016 for having defaulted in paying Ericsson to the services rendered by it in terms of Managed Services Agreement (MSA) dated 25.01.2013 entered between these group of companies/Corporate debtors (collectively addressed as "Reliance"), in view of the same, Ericsson filed these Company Petitions for the ascertained claim made against each of these corporate debtors, for they collectively failed to pay ₹ 9,78,72,06,974 - the dues admittedly outstanding as on 31.03.2017, henceforth Ericsson filed separate company petitions against each of these three Reliance Companies for initiation of Corporate Insolvency Resolution process against RITL (CP1385/2017) for defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Internet Protocol (IP) networking equipment, mobile and fixed broadband, operations and business support services, cable television, IPTV, video systems, and an extensive services operation. 8. Ericsson India Pvt Ltd (it is called as Managed Service Provider (MSP) in the MSA dated 25.01.2013) is a subsidiary of Swedish Ericsson, incorporated in 2008. Owing to its expertise in providing technical services of maintaining and optimising the network for wireless, maintaining the optical fibre network and managing passive infrastructure of towers, shelters and generators,, Reliance having Tele-communication infrastructure such as towers and optic fibre network across India, to manage services to it, Reliance entered into the MSA with Ericsson on 25.1.2013 for availing the Managed Services aforementioned, in pursuance thereof, according to Ericsson, it deployed thousands of employees for rendering services as agreed between the Ericsson and Reliance. 9. According to Ericsson, the revenue basically generated from this business from the subscribers of Corporate Debtors/telecom operators for using voice or data services- the subscribers use the services and pay to mobile operators fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Reliance Infratel Limited having their registered office at H-Block, 1st Floor, Dhirubhani Ambani Knowledge City, Koperkhairne, Navi Mumbai - 400 710 for and on behalf of both the entities hereby undertake (notwithstanding anything to the contrary that may have been discussed otherwise or stipulated in the MSA) as under: 1. To make the monthly payment for the services rendered by Ericsson under the MSA from April 1, 2017. In addition to the foregoing, will pay a minimum amount of ₹ 62 Crs (Rupees Sixty two Crores Only) per month commencing from April 1, 2017 for the previous outstanding amounts; and 2. To unconditionally clear all outstanding payments no later than September 20th 2017 payable under the MSA. Reliance Communications Ltd Reliance infratel Limited Sd Sd Authorised Signatory Authorised Signatory Date December 28, 2016 Place: Mumbai, India" 12. In its regular exercise, Reliance sent a letter dated 28.04.2017 to Ericsson stating that as per their books as on 31.03.2017, the due and outstanding payable to Ericsson is ₹ 978,72,06,974, with a breakup - Ericsson RCom Reconciliation statement as on 31.03.2017 - reflecting how much is due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.4 ST on SEM Not Accounted by RCOM Group 82,456,071 19,018,064 36,085,065 137,559,200 4.5 Invoice pertaining to Mar '17 accounting done in Apr '17 by Ericsson -350,101,382 -48,602,728 -276,652,163 -675,356,273 4.6 Reconciliation Pending -951,714 -8,842,460 55,143,392 -64,937,567 5 Sub Total -184,152,357 -22,152,271 -193,183,126 -399,487,753 6 - - - 0 12. When all the assurances went in vain, Ericsson sent notices u/s 8 of IBC on 07.05.2017 to each of these three companies claiming payment admitted by Reliance in the balance confirmation attached to the letter dated 28.04.2017, to this section-8 notice, Reliance sent reply letter dated 19.05.2017 asking Ericsson to bear with it for some more time so that it would clear the dues when monies come from others. In this reply, nowhere has it questioned or disputed the claims, the quality of services or any breach of a representation or warranty, except saying as follows: "Letter dated 19.5.2017 from Reliance By Registered Post AD/Courier/Email Without Prejudice Date: 19th May 2017 To Kapil Kher, Advocate, Anil K Kher& Co., Law Officers, F-26, New Rajinder Nagar, New Delhi-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnise the reasonable effort being put instead of strict enforcement. We reiterate our willingness to remain in constant communication with your client for effective resolution of all the pending matters and put a workable framework along with the completion of the two transactions. The notices issued will have irreversible consequences for both Reliance and the current partnership with Ericsson. The action being proposed in the notices will derail the strategic initiatives taken by us and will put all the stakeholders in a bigger jeopardy. In other words, the work done, moneys earned and partnership developed over many years would be ruined by disrupting progress on initiatives that is imminent and expected to close in the next 3 to 4 months. Recognizing the need for controlling further build-up of the problem, we are trying to put in place an arrangement working with RJiolnfocomm Ltd to ensure monthly dues is paid on time. We hope to have a definitive answer on this matter by no later than 31 May 2017. We are optimistic and sincerely hope that our above reguest will be considered favourably, in the meantime, we look forward to the continued support of your client and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific approval has suddenly been imposed by the lenders, and could not have been anticipated by us earlier, but this will not disrupt the overall schedule. 3. Regarding the weekly payments from August to December 2017 amounting to ₹ 50.6 Cr per week (enclosed as Annexure A) to liquidate the old outstanding of ₹ 1012 Cr for period upto 31st March, 2017, the SDR process does not permit us to issue unconditional instruments, such as LCs/PDCs and hence signing this letter as a form of assurance of payments. Ericsson being the core to Reliance operations, we are taking measures to impress upon the banks that these payments to Ericsson are very important and are confident that we-will be able to achieve the pay-outs as documented. As communicated in various emails and discussions in meetings we are diligently working to get the things resolved and we look forward to your continued support. For and on behalf of Reliance Communications Limited Authorised Signatory Date 29.6.2017 Place: Mumbai For and on behalf of Reliance Infratel Limited Authorised Signatory Date 29.6.2017 Place: Mumbai End: Annexure A ANNEXURE A - PAYMENT SCHEDULE FOR OLD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate the MSA and such purported termination is misconceived and untenable because after receipt of section 8 notice under IB Code, revised repayment understanding issued by RCom to Ericsson recording the revised repayment schedule agreed between the parties, by issuing such termination notice, section 8 notice dated 07.05.2017 under IB Code could not and would not survive, because earlier demand was substituted by the schedule of payments mentioned in the revised repayment understanding. Reliance states, in view of the same, Ericsson is called upon to withdraw the same immediately and continue to perform its obligation under the MSA. Thereafter, when Ericsson did not withdraw its termination notice, Reliance on 01.11.2017 invoked Arbitration Clause under the MSA dated 25.1.2013 claiming declaration with regards to the termination of the MSA by Ericsson on 07.09.2017, which according to Reiiance is unlawful and not in accordance with the terms of the MSA by further claiming damages for abrupt walk out of Ericsson from providing the services to Reliance under the MSA causing huge losses to Reliance, On having Ericsson received notice in the Arbitration Application; Ericsson filed its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices Agreement (MSA) as amended from time to time, henceforth, Ericsson, which rendered services as aforesaid, filed this company petition to initiate Corporate Insolvency Resolution Process (CIRP) against RITL 18. Ericsson submits that though Reliance continuously made several assurances, no payment has come to Ericsson as promised by them except few crores of rupees as mentioned in Annexure-3 filed by Ericsson, those amounts have been adjusted as they suggested, therefore there is no merit in saying the payments subsequently have not been adjusted against the debt liability, because Reliance had to make payments beyond the claim placed in these cases, the reason perhaps for doing so is Reliance wanted services of Ericsson for which they agreed to make regular payments along with arrears payable to Ericsson. To prove that the claim made by Ericsson has not been paid by RITL, Ericsson has filed the certificate given by its banks, HDFC Bank as well as Citi Bank to establish that RITL failed to pay the defaulted claim amount to Ericsson. For the outstanding due not being paid, Ericsson filed this Company Petition before NCLT Mumbai on 11.09.2017 with the particulars above mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Corporate Debtor defaulted making payment of ₹ 436,96,20,227 including provision for value of services rendered in the month of March 2017 along with other amount due as per the Managed Services Agreement (MSA) as amended from time to time, henceforth to initiate Corporate Insolvency Resolution Process(CIRP) against this Corporate Debtor. 24. RCom is a telecommunications company, providing services of GSM (Voice; 2G, 3G, 4G), fixed line broadband and voice, and Direct-To-Home (DTH), depending upon its areas of operation in India. RCom's shares are listed in both BSE & NSE. It is also the holding company of the other two Corporate Debtors. 25. Since it has broad infrastructure in relation to telecommunications, to manage this network spread among these three companies, it has engaged Ericsson by entering into MSA on 25.01,2013 because MSP (Ericsson) is in the business providing telecommunication network operations, maintenance and its related managed services. As Ericsson kept on providing managed services to these Corporate Debtors including this Corporate Debtor, when this Corporate Debtor defaulted in paying the admitted claim of ₹ 436,96,20,227, Ericsson issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om constituted JLF in June 2017, thereafter decided to opt for restructuring, resolution plan cum asset monetisation for strategic debt restructuring, sale of RCom in part or in total and any other option deemed fit for stress resolution. In progress of it, Reliance Jio Infocomm Ltd. (RJIL- in short RJio) emerged as the highest bidder for the aforesaid assets after following the transparent process by the evaluation committee. It is expected that a gross consideration of approx.Rs. 17,300 crores will be paid by RJio for the aforementioned assets of RCom consolidated and other properties lying at Delhi and Chennai will also fetch an additional amount of around ₹ 800crores, thus the total realisation will be around ₹ 18,100crores which could, directly come to the secured creditors in stages. The counsel has further pointed out that RBI had issued a fresh circular dated 12.02.2018 in respect to stress assets leaving open with two options either for restructuring in case of viable units or else to file insolvency filing in case of unviable units. In the said circular, it is further stipulated that if the restructuring not implemented within 180 days from 01.03.2018, Joint L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into MSA on 25.01.2013 with Ericsson which is considered to be an expert in providing managed services to telecommunication infrastructure companies, ever since Ericsson kept providing managed services as defined in the MSA to these' companies all over India by engaging thousands of employees and the same is not disputed by Reliance, therefore it is hereby held that Reliance received Managed Services from Ericsson from 25.01.2013 until before services were terminated. 34. Thereafter, it is a fact that Reliance for having itself on 28.04.2017 sent consolidated figure of dues with break ups payable to Ericsson as on March 31, 2017 for confirmation. thereafter innumerable letters requesting time for payment detailing in how many instalments it would pay to Ericsson, all this correspondence amounts admission of not only existence of debt but also existence of default. It is not out of context to mention that Reliance has not disputed the statement made on 28.04.2017 stating that as per Reliance Books, the balance due and payable to Ericson as on 31.03.2017 is ₹ 978,72,06,974, the same is the claim made by Ericsson. 35. As per the letter dated 28.04.2017, the due outstanding i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the agreement entered between them. It is understandable if any clause in the agreement in the MSA saying that the claims are premature, but it is not the case and it is not the argument of Reliance. And no material is present disclosing that the dues outstanding are not matured and not payable to Ericsson except saying that since they have given schedule for payment, default would not survive. 37. Another Senior counsel Mr Joshi appearing on behalf of one of the Corporate Debtors submits that since Ericsson itself has stated that Reliance having failed to pay as per the schedule given by them in the notice of termination sent by Ericsson, the cause of action for filing case basing on earlier demand u/s 8 of IBC would no more remain in existence because Ericsson itself stated in the termination notice that Reliance failed to adhere to make payment as per the plan given by them. 38. This counsel has further propounded an argument saying that this understanding of rescheduling of payment is novation to the earlier default; thereby the default present as on date of receipt of section 8 notice could not become a cause of action to file this company petition, henceforth these petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er claim for this very claim mentioned in these cases, in this background, the Tribunal having held that parties are at dispute, it has to be construed that there is dispute in between the parties therefore even if dispute did not arise before receipt of section 8 notice, by virtue of ratio decided by Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. 2017 SCC ONLINE. SC 1154, the dispute arose subsequent to filing of case u/s 9 of the Code has to be construed as dispute, in support of this argument, he relied upon paras of Mobilox Supra which are as follows: "29. It is, thus, clear that so far as an operational creditor is concerned, a demand notice of an unpaid operational debt or copy of an invoice demanding payment of the amount involved must be delivered in the prescribed form. The corporate debtor is then given a period of 10 days from the receipt of the demand notice or copy of the invoice to bring to the notice of the operational creditor the existence of a dispute, if any. We have also seen the notes on clauses annexed to the Insolvency and Bankruptcy Bill of 2015, in which "the existence of a dispute" alone is mentioned. Even otherwise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to identify the genuine level of a claim (not the likely result of it) and to identify the genuine levels of an offsetting claim (not the likely result of it)." In Scanhill Pty Ltd v Century 21 Australasia Pty Ltd (1993) 12 ACSR 341 at 357 Beazley said: "... the test to be applied for the purposes ofs 459H is whether the court is satisfied that there is a serious question to be tried that the applicant has an offsetting claim". In Chadwick Industries (South Coast) Pty Ltd v Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37 at 39, Lockhari j said: "... what appears clearly enough from all the judgments is that a standard of satisfaction which a court requires is not a particularly high one. I am for present purposes content to adopt any of the standards that are referred to in the cases ... The highest of the thresholds is probably the test enunciated by Beazley J, though for myself I discern no inconsistency between that test and the statements in the other cases to which I have referred. However, the application of Beazley J's test will vary according to the circumstances of the case". 43. To know what the ratio in the case supra is, we must recapitulate the historical facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on which they were received. The creditor followed up with the debtor for payment of pending invoices through e-mails sent between April and October, 2014. It is also important to note that a non-disclosure agreement (hereinafter referred to as the NDA) was executed between the parties on 26thDecember, 2014 with effect from 1st November, 2013. More than a month after execution of the aforesaid agreement, the debtor, on 30tilJanuary, 2015, wrote to the creditor that they were withholding payments against invoices raised by the creditor, as the creditor had disclosed on their webpage that they had worked for the "Nach Baliye" program run by Star TV, and had thus breached the NDA. The correspondence between the parties finally culminated into notice dated 12thDecember, 2016 sent under Section 271 of the Companies Act, 2013 by Kirusa. Presumably because winding up on the ground of being unable to pay one's debts was no.longer a ground to wind up a company under the said Act, a demand notice dated 23rdDecember, 2016 was sent for a total of ₹ 20,08,202.55 under Section 8 of the new Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code). By an e-mail dated 27th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his back drop, the Hon'ble Supreme Court sorted out the issue as to whether pendency of suit or arbitration is essential to decide that dispute is in existence by interpreting that the word "and" reflecting in section 8 (2) (a) of the Code has to be read as "or", so that even if suit or arbitration not pending, if at all dispute is already in existence as on the date of receipt of section 8 notice, then it has to be treated as pre-existing dispute as on the date of receipt of section 8 notice, 48. The reason for saying so in Mobilox is that when the NCLT decided Mobilox, it has taken into consideration the pre-existing dispute as a reason for dismissal of the case because in the month of January 2015 itself Mobilox sent e-mail to Kirusa stating that Kirusa violated Non-Disclosure Agreement (NDA) entered in between Kirusa and Mobilox by saying that Kirusa put it in its website stating that it was working for Star TV, when this decision was assailed before Hon'ble NCLAT, the order of NCLT was reversed stating that the dispute raised by Mobilox is vague, got up and motivated to evade the liability. On that observation, the Hon'ble Supreme Court held that the correspondence between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a disagreement between two parties in respect to an understanding; suit or arbitration proceeding is a sequel to the dispute already raised. That disagreement could be called as dispute only when a party aggrieved or felt aggrieved and communicated the same to other party. Such communication is called raising dispute. Date of dispute is cause of action for filing suit. Filing of suit or arbitration is not cause of action. Here in Mobilox, it communicated such disagreement on 30.01.2015 itself that is almost two years before filing case under IBC. Ever since lot of correspondence happened between the parties with respect to the dispute saying that Mobilox would not pay for having disclosed information not supposed to disclose under NDA therefore not liable to pay to the invoices raised by Kirusa. 52. But that is not the case here, Reliance right from the beginning, never raised any dispute, not even communicated that they have some difficulty in the services rendered by Ericsson, all through what Reliance continuously saying is that it would pay money at times on weekly basis, at times on monthly basis, sometimes saying that they would pay money in advance simultaneously assuring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on the aforesaid point, it is relied upon the judgements of this Hon'ble Supreme Court on obiter, which is as follows in State of Haryana v. Ranbir, [2006] 5 SCC 167: "A decision, it is well settled, is an authority for what it decide* and not what can logically be deduced therefrom. The distinction between a dicta and obiter is well known. Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. See ADM, Jabalpur v. ShivakantShukla {(1976) 2 SCC 521). It is also well settled that the statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative. (See Divisional Controller, KSRTC v. Mahadeva Shetty(20Q3 (7) SCC 197)" 55. In Girnar Traders v. State of Maharashtra, [2007] 7 SCC 555, Honourable Supreme Court held: "Thus, observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raising dispute before receipt of section 8 notice has not been interpreted nor modified. Reply to section 8 notice in 10 days after receipt of section 8 notice is only a caveat to say that already dispute is in existence, how that could be ascertained is, by referring earlier correspondence or action taken by corporate debtor against operational creditor. In the paras above referred from Mobilox is an indication to say even when such preexisting dispute is shown as in existence, it has been said that it should not be feeble and it should be plausible. Hon'ble Supreme Court has held that defense shall not be spurious, mere bluster, plainly frivolous or vexatious, a dispute shall truly exist in between the parties, which may or may not ultimately succeed. Here in this case what dispute is pending in respect to the claim, nothing. 58. As I have already mentioned that Reliance invoking arbitration assailing the termination notice is altogether different from the admitted claim upon which Ericsson initiated IBC proceedings. If at all it has to be assumed as dispute between the parties, it would become a dispute over the termination of MSA, not in respect to the money claim raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is for sure that he would not be getting his dues and when the person receiving services flouting their assurances one after another? 62. Let us take a hypothetical situation, Ericsson has not issued termination notice before filing this case, in case this case is admitted immediately after filing it, would Ericsson be in a position to withdraw its services after moratorium is declared, if that is the case, it would become double whammy to Ericsson, from one side, it would not get its dues, from other side it has to infuse crores of rupees to provide managed services to Reliance. Will anybody become so insane not to terminate services before filing this case? In fact, if any such thing, happened, it is nothing but inviting suicidal effect to Ericsson. Therefore, termination notice is no way connected either to the claim made by Ericsson or any way connected to relate back termination notice as dispute to the claim already admitted by Reliance. 63. The Corporate Debtors' counsel has vehemently argued that in the order passed by Arbitral Tribunal mentioned that dispute has been in existence in between Ericsson and Reliance by referring to various paras wherever Arbitral Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation:- For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred". 66. Soon after ascertaining whether there is a dispute as mentioned under section 5(6) of the Code, the next test that is to be applied is to ascertain as to whether such dispute is in existence as mentioned u/s 8(2)(a) of IBC. By reading section 8(2), it has to be seen whether there is a dispute in existence before receipt of section 8 notice or not, here timeline is important, if that cutoff line of the receipt of notice is not there, anybody and everybody will raise a dispute saying that reply has been given saying that dispute is in existence, yes, the corporate debtor is at liberty to say that dispute is in existence but such assertion must relate back to the date before receipt of notice, then only it wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to termination of MSA. Termination of MSA is subsequent to receipt of section 8 notice, the cause of action for filing Insolvency & Bankruptcy cases and the cause of action for invoking arbitration are distinct and separate, the corporate debtor counsel has tried to impress upon this Bench the cause of action for these two disputes are one and the same. Factually it is incorrect because these corporate debtors have never ever disputed the claim made by Ericsson, the only grievance of the corporate debtors is the termination notice given by Ericsson to these corporate debtors saying that Ericsson would not be in a position to further provide any services to the corporate debtors under the MSA because the corporate debtors continuously failed to pay for the services rendered by Ericsson. 4. Whether the petitions filed under section 9 are complete as envisaged under section 9 of IBC or not? 69. The essential requisite to get the completeness to a petition moved u/s 9 is that a petition u/s 9 is to be filed after expiry of 10 days from the date of delivery of notice and the operational creditor should not have received payment from the corporate debtors or notice of dispute u/s 2 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livered and such notice as well as reply sent by Reliance has been annexed to this petitions, first requisite under sub section 3 (a) is construed as fulfilled. As to sub section (b) is concerned, for the reply has been given to section 8 notice by the corporate debtors, question of filing an affidavit by the petitioner will not arise. As to section 3 (c) of section 9 is concerned, Ericsson has filed the certificate issued by HDFC bank as well as Citi bank certifying that Reliance has not credited the claim amount in the bank accounts. Since whatever information required u/s 9 (3) being given and having this Bench noticed that applications made under section 9 are complete, no payments have been made to satisfy the operational debts, notice for payment to the corporate debtors being delivered to the corporate debtors and no notice disputing the claim has been received by the operational creditor as envisaged under Insolvency & Bankruptcy Code or even according to the ratio decided by Hon'ble Supreme Court in Mobilox, this Bench hereby holds that section 9 petitions in all respects are complete and fit for admission. 71. It is hereby noticed that as to the allegation that Reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any money against its claim of around Rs. l,000crores, therefore, this proceeding is a malafide to jeopardise the asset monetisation process initiated by the JLF. 73. To which, the Sr. Counsel Mr. Modi appeared on behalf of Ericsson has stated that the claim of Ericsson against Reliance is about ₹ 1000 crores, whatever profit these corporate debtors earning. until before termination were only because of the managed services provided by Ericsson. In fact, this telecommunication service was run by Reliance for these three years is on the managed services provided by Ericsson. On the allegation that one of the Sr. Counsel namely Mr. Joshi made against Ericsson stating that Ericsson fraudulently raised this litigation against Reliance, this Counsel stated as to whether Ericsson has filed a petition that is not permitted under law, has it raised any claim that is denied by the Corporate Debtors, he also questioned, has Reliance ever disputed the due outstanding payable by Corporate Debtors at any point of time. 74. The counsel of Ericsson says that Mr. Joshi, senior counsel on Corporate Debtors behalf ought not to have made an allegation that Ericsson has filed these cases with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moreover, it is an out and out sale by RCom and its group companies to RJio by bidding or may be by a sale, but what right this applicant has to say that no orders should be passed on the Company Petitions filed by Ericsson i.e. Operational Creditor. When it has been envisaged in the Code as well as held by Hon'ble NCLAT and Hon'ble Supreme Court stating that the non-obstante clause present in section 238 of the Code governs all other proceedings which are inconsistent with the proceedings pending under IBC. IBC does not say whether the Corporate Debtors have ability to pay or not to pay, it is not mentioned anywhere to examine as to whether the petitioner has malafide intention to proceed against the Corporate Debtors, the only requisite is debt must be there, default must be there, dispute in existence should not be there. If all these three are complied with, this Bench ought to admit these Company Petitions. 77. Therefore, we have not noticed any merit in the application moved by SBI, as to the order of Hon'ble Supreme Court, SBI is only given liberty to proceed in accordance with law, not to obstruct the proceeding initiated in accordance with law. Henceforth, the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (ii) That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (iii) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (iv) That the order of moratorium shall have effect from 15.05.2018 till the completion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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