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TMI Blog2018 (11) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... or is entitled to claim its dues towards the goods supplied to the corporate debtor and there has been a default in payment of the operational debt. Besides the invoices raised and the amount claimed by the operational creditor have not been disputed by the respondent corporate debtor. It is also seen that no disciplinary action is pending against the proposed IRP. Therefore, on fulfillment of the requirements of section 9(5)(i)(a) to (e) of the Code, the present application is admitted. - COMPANY PETITION NO. 519(PB)/2017 - - - Dated:- 12-10-2018 - MR M.M.KUMAR, PRESIDENT AND MR S.K. MOHAPATRA, MEMBER (T) For The Applicant : Shariq J. Reyaz, Adv. and Sourabh Sahni, Advocate For The Respondent Company : None ORDER S.K. MOHAPATRA, MEMBER 1. M/s. Globe Express Services Private Limited claiming as the operational creditor has filed this application 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 ) for initiation of Corporate Insolvency Resolution Process in respect of Respondent company M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue on 09.08.2017 against 1 invoice. viii. Amount of ₹ 97,200.80 became due on 14.08.2017 against 3 invoices. ix. Amount of ₹ 31,101.08/- become due on 16.08.2017 against 1 invoice. x. Amount of ₹ 47,193.92/- become due on 28.08.2017 against 1 invoices. xi. Amount of ₹ 5,10,990/- become due on 31.08.2017 against 2 invoices. xii. Amount of ₹ 2,04,171.30 become due on 16.09.2017 against 5 invoices. xiii. Amount of ₹ 40,920.10 become due on 18.09.2017 against 1 invoice. 7. It is submitted that despite repeated requests respondent company failed to make payments towards the aforesaid invoices. 8. Thereafter, demand notice under section 8 of the Code read with Rule 5 of the Rules was issued by Operational Creditor on 07.10.2017 calling upon the respondent Corporate Debtor to pay a sum of ₹ 2,935,156.62 within a period of 10 days from receipt of the said notice. However, it is alleged that the respondent Corporate Debtor failed to make any payment of the operational debt to the Operational Creditor. 9. An affidavit dated 14.11.2017 has been filed by the applicant certifying that the respondent company has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Head of Respondent Company M/s. AGI Cargo Private Limited. Similarly, at page 13 of the application Nitin Kapoor has signed the application as authorized representative of the corporate debtor. Under proviso to sub-section (5) of Section 9 of the Code the applicant is given opportunity to rectify the defect. It is further seen that as per FORM-5 the applicant was required to enclose documents/records and evidence in proof of the default However, in the present application the applicant has only enclosed the invoices and a banker s certificate. The bank certificate shows that three cheques were submitted by the respondent company which could not be encashed. In this regard there is no pleading in the application. It is not clear whether any payment has been made by the respondent. The applicant neither has enclosed the ledger account nor any bank account statement in support of the transactions made between the parties. No agreement nor any purchase order has been enclosed. It appears that the invoices have not been acknowledged by the respondent company. There is no disclosure of date of default as required in the Form. The onus to proof the claim lies on the applicant. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of the Invoices on such dates the default occurs. 6. That purchase vouchers or Agreements for provision of services are not in vogue in the Industry and as per the prevailing trend, services are rendered after e-mails and telephonic conversations between the parties who are otherwise also generally known to each other being from the same Industry. 7. That the Respondent Company never disputed the rendition of services or the Bills/Invoices as raised by the Applicant Company and that Respondent Company has been issued the statutory Notice under the IBC and that they have chosen not to dispute the correctness of claim of the Applicants herein. It is reiterated that no dispute with respect to the said Amount exists and the Respondent Company has not and cannot raise any dispute with respect to the said Amount. The Respondent Company even entered appearance through their Director on 05.12.2017 but thereafter did not appear and the Hon ble Authority was constrained to proceed ex parte against the Respondent Company on 29.01.2018. 8. That the cheques issued to the Applicant were issued against the services as rendered by the Applicant Company and that the same were d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; (b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor; if available. (d) A copy of record with information utility confirming that there is no payment of an unpaid operational debt by corporate debtor, if available; and (e) Any other proof confirming that there is no payment of an unpaid operational debt by the corporate debtor or such other information as may be pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal creditor. (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. 18. In the present case the respondent has duly acknowledged the receipt of demand notice dated 07.10.2017 issued both in Form 3 and Form-4 alongwith invoices attached to it. It is seen that the copy of demand notice has been duly acknowledged with the seal of the respondent company with a note that subject to check all invoices and with rates and terms. There is thus no dispute that the notice alongwith invoices issued under section 8 of the Code has been received by the respondent corporate debtor. 19. Having received the invoices along with notice respondent corporate debtor neither disputed the claim nor has submitted any reply within the time prescribed under sub-section (2) of section 8 of the Code, which reads as under: (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr. Mohd. Nazim Khan, for appointment as Interim Resolution Professional, having registration number IBBI/IPA-002/IP-N000076/2017-2018/10207, resident of MNK Associates, Company Secretaries, G-41, Ground Floor, West Patel Nagar, New Delhi-110008 with email-id [email protected]. Mr. Mohd. Nazim Khan has agreed to accept appointment as the interim resolution professional and has signed a communication dated 05.08.2018 in Form 2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is a declaration made by him that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or elsewhere. In addition, further necessary disclosures have been made by Mr. Mohd. Nazim Khan as per the requirement of the IBBI Regulations. Accordingly, it is seen that no disciplinary proceeding is pending against the proposed IRP as required under Section 9(5)(e) of the Code. 24. In the present case applicant has raised various invoices towards services rendered to the respondent company which was duly acknowledged by the respondent. Respondent has not disputed the invoices raised by the applicant. Bes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has rendered service and has sent invoices to the respondent, who has acknowledged the receipt of the same and has noted in the acknowledgement that the invoices will be examined and processed. 30. Hon ble Supreme Court in the case of Mobilox Innovations Private Limited V. Kirusa Software Private Limited, reported in AIR 2017 SC 4532 has held that: 25. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an operational debt as defined exceeding Rs. l lakh? (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? 31. In the present case we are satisfied that the application is complete in all respect and the Operational Creditor is entitled to claim its dues towards the goods supplied to the corporate debtor and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kruptcy Code (Amendment) Act, 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. 36. The Interim Resolution Professional shall perform all his functions contemplated, inter alia, by Sections 15, 17, 18, 19, 20 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code , Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the day to day affairs of the Corporate Debtor . In case there is any violation, the Interim Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional shall be under duty to protect and preserve the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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