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TMI Blog2018 (11) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... rational Creditor has produced the copy of statement of accounts. The Operational Creditor succeeds in proving that demand notice has been issued to the Corporate Debtor along with the copy of invoices and the demand notice has been delivered on the Corporate Debtor. Section 9(5)(e) of the Code not meted out because the operational Creditor has not proposed the name of the Insolvency Professional. The application is liable to be admitted - CP (IB) No. 165/KB/2018 - - - Dated:- 3-10-2018 - SRI Jinan K.R., MEMBER (JUDICIAL) For The Appellant : Akash Sharma, PCS ORDER 1. This is an Application filed under Section 9 of the Insolvency Bankruptcy Code, 2016 by M/s. Kishore and Company, for initiating the Corporate Insolvency Resolution Process in respect of Sri Balaji Metallics Pvt. Ltd./Corporate Debtor for the reason of non-payment of ₹ 31,20,806/- (Thirty One Lakh) only with interest at 18% per annum despite the demand notice issued under Section 8 of the Insolvency Bankruptcy Code, 2016. (In short I B Code) 2. The Applicant/Operational Creditor has entered into a contract with the Respondent/Corporate Debtor for transportation of linkage coal from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays for admitting the Application and in support of the contentions the following documents were annexed with the Application: (a) Bank statements of Operational Creditor where deposits are made or credits are received in respect of the debt of the Corporate Debtor, Annexure D (Page Nos. 24 to 28A) (b) The copies of mail dated 23-10-2016 and letters dated 27-03-2016 and 22-07-2017 issued by the Operational Creditor to the Corporate Debtor, Annexure D (Page Nos. 29 to 31) (c) The copies of legal notice dated 20-06-2016 and a legal notice dated 09-08-2017 issued by the Advocate under Section 433/434 of the Companies Act, 1956, Annexure F (d) The copies of all the Invoices raised by the Operational Creditor to the Corporate Debtor, Annexure G (e) The copies of Ledger Accounts of the Operational Creditor evidencing the receipt of payments on various dates from the Corporate Debtor, Annexure H (f) The copy of TDS(Form 26AS) of the Operational Creditor evidencing the amount paid/credited by Corporate Debtor on behalf of the Operational Creditor, Annexure I (g) The copy of the Demand Notice issued by the Operational Creditor dated 07-01-2018 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Insolvency Bankruptcy Code, 2016. The Operational Creditor contends that the Applicant Company is a Proprietorship and the sole Proprietor of the company is Mr. Kailash Chandra Agarwal and he filed the Application for initiating the Corporate Insolvency Resolution Process as against the Corporate Debtor. One among the objections raised by the Corporate Debtor is that the Applicant Company is not a person within the meaning of Sec 2(23) of the Insolvency bankruptcy code, 2016 and therefore, an application of this nature could not be filed by Mr. Kailash Chandra Agarwal. The application being filed by M/s. Kishore and Company, represented by its sole Proprietor, filing of application of this nature is perfectly legal and is maintainable. The objection regarding the maintainability raised on the side of the Corporate Debtor is therefore, found, not sustainable. 12. The Operational Creditor demanded ₹ 31,20,806/- as the outstanding amount due on the strength of two invoices No.007 dated 27-0-7-2015 (at page 39) and 009 dated 27-08-2015(at page 44) with 18% interest per annum. 13. According to the Operational Creditor, out of four bills/invoices generated for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2015. What is relied upon is the Ledger Account Annexure H of the Corporate Debtor for the period 01-04-2014 to 31-03-2015. A reference to Annexure H not at all proves that the amount demanded on the strength of the two bills has been paid by the Corporate Debtor. On the other hand, the transaction on the strength of both bills seem to have admitted by the Corporate Debtor and TDS has been deducted by the Corporate Debtor on the strength of the payment demanded as per the two bills. 20. Therefore, nothing shows that the amount claimed by the Operational Creditor is not due as alleged by the Corporate Debtor in the reply affidavit. In the absence of the Corporate Debtor, I have considered the reply affidavit in detail and satisfied that none of the objections are sustainable under law. 21. In view of the above said discussions, I can come to a conclusion that the outstanding amount as claimed by the Operational Creditor is due and despite issuance of demand notice, the corporate Debtor failed to discharge its debts and therefore, an application of this nature is liable to be admitted provided the Operational Creditor succeeds in proving that the requirement to be meted ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the possession of the corporate debtor. (v) The supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium period. (vi) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. (viii) Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. (ix) Necessary public announcement as per Section 15 of the IBC, 2016 may be made. (x) Shri Sandip Kr. Kejriwal, Registration No IBBI/IPA-002/IP-N00236/2017-18/10687, E-mail ID: [email protected], Mobile No.9831074124, is appointed as Interim Resolution Professional for a ..... 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