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TMI Blog2018 (9) TMI 1610X X X X Extracts X X X X X X X X Extracts X X X X ..... omo Electric Industries Ltd. and the respondent herein to supply the spare parts of the splicing machines which were already supplied on the same terms and conditions and on condition of paying the costs of the spare parts, accessories etc. A perusal of the aforesaid order passed by the Senior Civil Judge and the counter in the above said applications clinchingly show that the dispute that is pending in the City Civil Court or in the Hon'ble High Court of judicature at Hyderabad has nothing to do with the operational debt claimed in this petition. The operational debt claimed in this petition is pertaining to the period upto 30.03.2017 and during the subsistence of the Distributionship Agreement. The dispute that is pending in the Civil Court pertain to the termination of the Distributionship Agreement dated 01.04.2016 and the consequential reliefs. It is not even the case of the respondent that on account of the termination of the Distributionship Agreement he has not paid the operational debt. Therefore, the dispute in Civil Court do not relate to the operational debt that is claimed in this petition. The dispute that is pending has nothing to do with the operational deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de e-mails dated 30.03.2017 02.04.2017 12.04.2017 17.04.2017 26.04.2017 28.04.2017 01.05.2017 02.05.2017 12.05.2017 15.05.2017 16.05.2017 17.05.2017 18.05.2017 19.05.2017 22.05.2017 23.05.2017 24.05.2017 26.05.2017 29.05.2017 30.05.2017 31.05.2017 01.06.2017 02.06.2017 05.06.2017 06.06.2017 07.06.2017 13.06.2017 14.06.2017 16.06.2017 03.07.2017 11.07.2017 but the respondent did not respond to the emails . 8. The respondent did not choose to make any payment under the invoices, which is lawfully due to the petitioner. 9. The petitioner also claimed interest of ₹ 9,30,666/-calculated @ 2% p.m., from the date when the payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide intention to grab and usurp the business of the respondent and in pursuance of such mala fide intention, the petitioner started to entertain the idea of appointing other companies as distributors for Splicing Machines in India. 21. According to the respondent, the said action on the part of the petitioner is in breach of the promises and assurances made by the petitioner and its parent company namely Sumitomo Electric Industries Limited. 22. It is stated by the respondent that even in the first week of April 2017 the petitioner was sending e-mail to the respondent indicating that the respondent would continue as distributor in future also and surprisingly, the petitioner vide its email dated 07.04.2017 arbitarily and illegally terminated the Distributionship Agreement existing between the respondent and the petitioner without assigning any reasons. 23. It is stated by the respondent that it has participated in sales being floated by the corporations like BSNL, MTNL, Armed Authorities, Telecom Operators, Television Cable Network, Internet service Providers, Railway etc., on the strength of the certificate issued by the petitioner and its parent company. 24. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent made by the respondent. 35. The first and foremost objection raised by the respondent is, the demand notice said to have been issued by the petitioner in Form-3 has not been issued in accordance with the Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority Rules, 2016). 36. In this context it is necessary to refer to Rule 5 of the adjudication rules. RULE 5 Demand notice by operational creditor (1) An Operational creditor shall deliver to the Corporate Debtor, the following documents, namely:- (a) A demand notice in Form 3; or (b) A copy of an invoice attached with a notice in Form 4. (2) The demand notice or the copy of the invoice demanding payment referred to in sub-section (2) of section 8 of the Code, may be delivered to the Corporate Debtor; (a) At the registered office by hand, registered post or speed post with acknowledgement due; or (b) By electric mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor. (3) A copy of demand notice or invoiced demanding payment served under this rule by an operational creditor shall also be filed with an info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the registered office of the corporate person is located. 50. In view of the said provisions of the Code it is the place of the registered office of the corporate person that determines the territorial jurisdiction, the forum being the National Company Law Tribunal functioning as Adjudicating Authority. 51. In the case on hand the registered office of the Corporate Debtor namely, M/s.Aishwarya Technology . Telecom Limited is situated in Hyderabad and therefore this Adjudicating Authority at Hyderabad is having territorial jurisdiction for the purpose of invoking Sections 7, 8, 9 and 10 of the Code. 52. The parties cannot confer jurisdiction on the judicial Forums or Codes by mutual Agreement unless a particular Forum or Code is having a territorial jurisdiction over the subject matter of the dispute that arises under various enactments. 53. In the case on hand although the Distributionship Agreement says that the Courts at New Delhi are having jurisdiction to decide the disputes, this petition cannot be filed before the Court at New Delhi since the Court at New Delhi is not conferred with territorial jurisdiction in sofar as invocation of the provisions of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Candid Optronix Pvt. Ltd. 61. However, the learned Senior Civil Judge granted temporary injunction directing M/s. Sumitomo Electric Industries Ltd. and the respondent herein to supply the spare parts of the splicing machines which were already supplied on the same terms and conditions and on condition of paying the costs of the spare parts, accessories etc. 62. A perusal of the aforesaid order passed by the Senior Civil Judge and the counter in the above said applications clinchingly show that the dispute that is pending in the City Civil Court or in the Hon'ble High Court of judicature at Hyderabad has nothing to do with the operational debt claimed in this petition. 63. The operational debt claimed in this petition is pertaining to the period upto 30.03.2017 and during the subsistence of the Distributionship Agreement. 64. The dispute that is pending in the Civil Court pertain to the termination of the Distributionship Agreement dated 01.04.2016 and the consequential reliefs. 65. It is not even the case of the respondent that on account of the termination of the Distributionship Agreement he has not paid the operational debt. 66. On the other hand, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitration panel or other authority; b. Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; c. 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 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. i. The moratorium order in respect of (a), (b), (c) and (d) above shall not apply to the transactions notified by the Central Government. ii. However, the order of moratorium shall not apply in respect of supply of essential goods or services to Corporate Debtor. iii. The Applicant shall also make public announcement about initiation of Corporate Insolvency Resolution Process, as required by Section 13(1)(b) of the Code. 76. This order of moratorium shall be in force from the date of order till the completion of Corporate Insolvency Resolution Process subject to the Proviso und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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