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TMI Blog2018 (11) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor himself have submitted that “Easytech i.e the Corporate Debtor has never refused to clear the outstanding dues as claimed in the demand notice. They have further submitted that they are incapable to clear the outstanding payments because of paucity of funds facing by their business organization”. Thus, they have admitted the liability. We are satisfied that the present application is complete and there has been part admission of dues and non-payment of the same has resulted in default by respondent. Therefore, on fulfillment of the requirements of section 9 (5) (i) (a) to (d) of the Code, the present application is admitted. - Company Petition NO. IB-794(ND)/2018 - - - Dated:- 4-10-2018 - SMT. INA MALHOTRA, MEMBER (J) AND SMT. DEEPA KRISHAN, MEMBER (T) For The Applicant : Ajay Malviya, Advocate For The Respondent : Girish Sharma, Advocate ORDER SMT. DEEPA KRISHAN, MEMBER (T) This is an application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 (for brevity 'the Rules') with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- only which has not been duly accounted for in the ledger account maintained by operational creditor. Hence, after adjusting the above received amount against the running account, the closing balance amount of ₹ 6, 36,643/- is still lying outstanding and pending to be paid by corporate debtor. 8. Further the Operational Creditor have argued that the mutually agreed terms of the issued invoices clearly stipulate that in case the amount shown in the respective invoice is not cleared upon presentation of the tax invoice, an interest @ 18% per annum on the outstanding amount shall be levied. 9. The Operational Creditor have further submitted that on considering a long standing business relationship with Corporate Debtor, the applicant is claiming interest on the outstanding debt only from the date of last invoice raised w.e.f 25.10.2016 to 10.05.2018 which is calculated @18% and worked out to be ₹ 1,71,992/- along with the principal outstanding debt. Hence the total amount of debt including principal outstanding amounting to ₹ 6,36,643/- along with an interest @ 18% on the outstanding debt only from the date of the last invoice raised w.e.f. 25.10.2016 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. However, no written or documentary proof in this regard has been placed on record by respondents. 14. Operational debt has been defined under Section 5 (21) of the Code as follows: Operational Debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; Operational creditor has also been defined at section 5(20) as follows: Operation Creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred . 15. From the definition of Operational creditor and Operational Debt , it can be seen that the applicant has provided the services i.e. clearing the shipment of the respondent company from customs. Having providing services to the respondent company, the applicant clearly comes within the definition of Operational Creditor. Similarly, the claim of outstanding payments to applicant comes within the definition of Operational Debt. Respondent company having admitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pied by or in the possession of the corporate debtor. 20. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3)(b) of the Code. 21. In the Part- III of the application form the Operational Creditor has named Anurag Sharma as IRP and his registration number is given. However, no consent from him has been placed on record. 22. The Insolvency and Bankruptcy Board of India vide its letter dated 01.01.2018 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. Accordingly, we appoint Mr. Ashish Kumar Batia, email id [email protected], Mob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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