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TMI Blog2019 (9) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... completed within 180 days, reckoning from the day this order is passed. Application admitted - moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... htra. The Learned Sr. Counsel for the Financial Creditor has referred to the various e-mail requests sent by the Corporate Debtor to the Financial Creditor for transfer of funds towards salary of the employees and statuary expenses to be incurred by it and acknowledgement of the same. 9. The Learned Sr. Counsel for the Financial Creditor has further submitted that in terms of the MoU entered into between the Corporate Debtor and the Financial Creditor, the Corporate Debtor did not proceed to negotiate the terms of definitive agreement as was necessary to implement the provisions of the MoU. Therefore, the Corporate Debtor is liable to return the money provided by the Financial Creditor to the Corporate Debtor, as working capital on various dates. 10. The Learned Sr. Counsel for the Financial Creditor has referred to the typed set of document filed by the Corporate Debtor along with the Reply which contains the pleadings (Motion to Dismiss) filed before the US Court by the Corporate Debtor's US subsidiary wherein it was admitted that the monthly capital allegedly provided by the Financial Creditor was either a loan or extension of credit. 11. The Corporate Debtor has filed Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtion of the definition Section 5(8)(f) of I&B Code, 2016. The default is also not pleaded and proved. 13. The 3rd objection that has been raised by the Corporate Debtor is that having issued notice as an Operational Creditor, an Application under Section 7 of I&B Code, 2016 is not maintainable. The Corporate Debtor has finally submitted that the debt is barred by limitation and the acknowledgement of debt attempted to be established with WhatsApp messages cannot constitute an acknowledgement and the WhatsApp messages relate to a transaction that happened in USA with the parent company [CD's subsidiary is in USA not parent] of the Corporate Debtor. Even, if it is assumed that the transaction took place between 02.09.2013 and 04.09.2014, the limitation has to be reckoned from 04.09.2013 onwards. The E-Mail correspondence filed along with the Application as Annexure 4 ended with 01.09.2014. On the day when the Application was filed i.e. 22.06.2018, it was clearly barred by limitation. Therefore, the Corporate Debtor has prayed to dismissed the instant Application and thus render justice. 14. From the pleadings of the parties, the issues that can be framed are as follows :- i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve expenses including liabilities as on the 'effective date' given in the MoU. 18. In pursuant to the terms and conditions of the MoU, the Applicant/Financial Creditor had started to make the payments to the Corporate Debtor with effect from 22.08.2013 to 04.09.2014 as reflects from the Certificate issued by the Bank of Maharashtra, which is placed at pages 6 to 8 of the typed set filed with the Application. The total amount now claimed is ₹ 2,13,61,067/- as on 05.09.2013 along with further interest @ 18% per annum. 19. As per the terms and conditions of the MoU entered into between the Applicant/Financial Creditor and the Corporate Debtor, the Applicant/Financial Creditor brought in funds from time to time for corporate debtor's Working Capital, cleared its liabilities and paid other expenses. However, the corporate debtor did not perform its obligation i.e., to proceed to negotiate the terms of definitive agreement, as was envisaged for implementation of the provisions the MoU. Therefore, money infused by the applicant/financial creditor into the corporate debtor is being demanded back by the applicant, which the corporate debtor failed to pay. The money broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Applicant/Financial Creditor while rebutting the arguments of the Learned Sr. Counsel for the Corporate Debtor has referred to the WhatsApp messages which were exchanged between the Applicant/Financial Creditor and Corporate Debtor. He has placed on record the WhatsApp messages dated 07.07.2015, whereby the Corporate Debtor has assured the Applicant/Financial Creditor that the subsidiary of the Corporate Debtor hosted in USA will pay to the Applicant/Financial Creditor by the end of July or the 1st week of August onwards. Another reference has been made by the Learned Senior Counsel for the Applicant/Financial Creditor about the communication that has been exchanged between the parties on 03.09.2015 by which the Applicant/Financial Creditor has again requested the Corporate Debtor to make payments. Besides this, one more such communication was exchanged between the Applicant/Financial Creditor and the Corporate Debtor on 13.01.2016, by which the Corporate Debtor again assured the Applicant/Financial Creditor that it will start paying every month from the month of January, 2016 and clear the outstanding in ten months, wherein it has clearly been mentioned that the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant/financial creditor, the same can be taken care of during the CIRP. In this connection reliance is placed on the judgment of the Apex Court given in Swiss Ribbons's are reported in (2019) 4 SCC 17 It is also noted that the Learned Senior Counsel for the Applicant/Financial Creditor controverted the contention of the counsel for the corporate debtor and submitted that the financial creditor has not availed any facility from the Corporate Debtor. 23. Further, the learned Senior Counsel for the Corporate Debtor while arguing the case has contended that the Applicant/Financial Creditor in the beginning has sent the notice under Section 8 of the I&B Code, 2016 to the Corporate Debtor as "Operational Creditor" and thereafter he cannot file the Application under Section 7 of the I&B Code, 2016. In reply to the said arguments the Learned Senior Counsel for the Applicant/Financial Creditor has submitted that the notice under Section 8 of I&B Code, 2016 was issued inadvertently, which does not operate as an estoppel against the Applicant/Financial Creditor. The Learned Senior Counsel for the Applicant/Financial Creditor has also clarified during the course of arguments that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement 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. 27. The supply of essential goods or services of the Corporate Debtor/Guarantor shall not be terminated or suspended or interrupted during moratorium period. The provisions of Sub-section (1) of Section 14 shall not apply to such transactions, as notified by the Central Government. 28. The IRP shall comply with the provisions of Sections 13(2), 15, 17 & 18 of the I&B Code. The Directors of the Corporate Debtor, its promoters or any person associated with the Management of the Corporate Debtor are/is directed to extend all assistance and cooperation to the IRP as stipulated under Section 19, so that he could discharge his functions under Section 20 of the I&B Code, 2016. 29. The Financial Creditor and the Registry are also directed to send the copy of this Order with immediate effect to IRP, so that he could take charge of the Corporate Debtor's assets etc., and make compliance with this Order as per the provisions of I&B Code, 2016. The address details of the IRP are as follows: - Mr. V. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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