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TMI Blog2018 (7) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... orate debtor and there has been a default in payment of the operational debt. Therefore, on fulfilment of the requirements of section 9 (5) (i) (a) to (e) of the Code, the present application is admitted. The Insolvency and Bankruptcy Board of India vide its letter dated 1.1.2018 has recommended a panel of Insolvency Professionals for appointment as Insolvency Resolution Professional in compliance with Section 16(3)(a) of the Code in order to cut delay. The list of recommended Insolvency Professionals provides instant solution to the Adjudicating Authority to pick up the name and make appointment. - IB-602/ND/2017 - - - Dated:- 26-4-2018 - MS. DEEPA KRISHAN AND MS. INA MALHOTRA, JJ. JUDGMENT Ms. Deepa Krishan, Member (Technical) 1. The Operational Creditor , M/s. Topsgrup Services Ltd. has filed the instant application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) with a prayer for initiating the Corporate Insolvency Resolution Process against the Corporate Debtor , M/s. BLS IT- Services Pvt. Limited. It is appropriate to mention that the Operational Creditor is a Limited Company having its registered office at 5, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been given in Part IV of the application and their true copies have been attached along with the petition. It is seen that these invoices are dated 31.05.2017 till 20.09.2017 and each invoice has been acknowledged with stamp by the Corporate Debtor. 5. A copy of the bank statement where deposits have been made or credit received normally by the Operational Creditor in respect of the debt of the Corporate Debtor has been attached. 6. A copy of letter dated 28.09.2017 issued by the Operational Creditor applicant to M/s. BLS International Services Limited (not the CD) regarding outstanding dues pending for the period of May, 2017 to September, 2017 amounting to ₹ 3,77,01,461/- has also been attached as a part of the instant application filed by the Operational Creditor dated 11.10.2017 for initiating CIRP. In their reply, reasons for delay in payments have been given. 7. A copy of the demand notice dated 31.10.2017 issued under Section 8 of the IBC has been attached demanding payment of an unpaid operational debt amounting to ₹ 17,60,321/32 along with a copy of the purchase order and the invoices. The postal receipts and the tracking report showing service o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onduct of the parties since from the very inception of the relationship between the parties, whenever the operational creditor would raise an invoice on the Corporate Debtor and if there were any deductions on account of penalty levied by the corporate debtor in view of the non-availability of the guard or for the guard not being in the uniform, the invoice raised by operational creditor was only cleared after deducting the penalties, for example invoice date 31.05.2017 for an amount of ₹ 1605698/- was paid after deduction of ₹ 46000/- as penalty and there are various other instances also where such type of deduction has been made by Corporate debtor. Copies of some invoices and proof of payment after deduction have been placed on record. 11. The respondent corporate debtor has placed on record various emails showing intimation of breach of contract by operational creditor and reply/ admission of those e-mails. 12. It is further submitted that on account of various breaches of agreement by operational creditor the respondent terminated the contract vide letter dated 13.09. 2017. It is stated that as per the clause 20 of the agreement the applicant must vacate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore the accounts required reconciliation in the following manner:- At the outset, we would like to inform you that the outstanding as per our books are totally different from that indicated in your above letter. This is because you have failed to consider all the penalties etc. that has been debited to you account on account of absence of your guards from duty, thefts etc. These have been brought to the attention of you team but not accounted by you. .. We would like to reiterate that unless a reconciliation is done, we cannot agree to any dues to your organization as on date, and deny any and all claims made by you in your aforesaid letter. Pls depute your representative to reconcile the amounts at the earliest. 17. The corporate Debtor submits that vide letter dated 11.10.2017 it unequivocally disputed the amount of the debt claimed by the Operational Creditor and also notified the other disputes which were in existence between the parties. The Corporate Debtor submits that at that stage it was impossible for the Corporate Debtor to quantify its specific claim since the breach was ongoing and the Notice period under the Termination Clause was to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 Sept 17 Zone 2 LU17000316 3525539 15 Sept 17 Zone 3 LU 17000420 1664272 Total 7724923 Total O/s 37968869 Payment received against May 17 invoice 1500000 Total (May 17-Sep. 17) 36468869 Arrear Bill Amount 1232592 Grand Total O/s 37701461 20. The records have been perused and argument have been heard. 21. This Tribunal is not an adjudicating authority to ascertain the quantum of default. The only essential ingredient of section 9 is that a default must have been committed by the corporate debtor. 22. The Corporate Debtor admitted its Corporate Debt in its reply to notice and quoted the reason for non-payment as there is delay in releasing the payments by the Punjab Govt. to the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill the completion of that month. The Corporate Debtor directed the Operational Creditor to remove their Security guards between 30.09.2017 to 05.10.2017 as the CD arranged some other Security agencies to provide guarding services from October, 2017 onwards. 27. The Corporate Debtor has stated that approximately 75 out of 367 Security Guards have filed various complaints against the Operational Creditor claiming their Wages and The Salary of the employees are due for the periods May, 2017 to September, 2017 (Corporate Debt is of the same period). 28. Respondent has taken the stand that there is existence of dispute with respect to the debt and demand in question. There has been no clear communication of dispute to the applicant about deficiency in services. No damage/counter claim has been lodged. No arbitration and/or legal proceedings in the matter are pending. When there is absolutely no document or particulars to support the claim of existence of dispute, the mere claim of dispute that rose in the reply given belatedly after issue of notice u/s 8 of IBC and in the pleadings in defence can be termed as motivated to evade the liability and thus, dismissed. 29. The onus t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; * recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 34. It is further directed that: (a) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (b) The provisions of sub-section (1) of section 14 of the Code shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. 35. The Insolvency and Bankruptcy Board of India vide its letter dated 1.1.2018 has recommended a panel of Insolvency Professionals for appointment as Insolvency Resolution Professional in compliance with Section 16(3)(a) of the Code in order to cut delay. The list of recommended Insolvency Professionals provides instant solution to the Adjudicating Authority to pick up the name and make appointment. Accordingly, we appoint Mr. Vinod Kumar Chaurasia (Email id: [email protected]) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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