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TMI Blog2018 (8) TMI 1886X X X X Extracts X X X X X X X X Extracts X X X X ..... al Creditor under Section 9 of the Insolvency Bankruptcy Code, 2016 (in short, 'I B Code, 2016') r/w the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The prayer made is to admit the Application, to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, declare moratorium and appoint Interim Resolution Professional (IRP) under the Insolvency and Bankruptcy Code, 2016 (I B Code). 2. Heard the Counsels for the Operational Creditor and Corporate Debtor and perused the pleadings including the documents placed on the case file. 3. The Operational Creditor has claimed an outstanding debt to the tune of ₹ 1,15,00,000/- along with ₹ 31,08,588/- which is due and payable by Corporate Debtor, but it failed to pay the same. 4. The case of the Operational Creditor is that the Corporate Debtor viz., M/s. Green Peace Construction Private Limited, has entered into a Joint Development Agreement (JDA) dated 07.03.2010 with the members of Ajanta Flat Owners for construction of 54 Flats with such specifications agreed upon in the said JDA. The copy of JDA is placed at pages 1 to 63 of the type ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 17.01.2015 is placed at page 67 of the typed set filed with the Application, 8. On 22.01.2015, the Corporate Debtor acknowledged the liability for the pending works and issued a post-dated cheque in favour of the Operational Creditor for a sum of Rs.l crore, as part payment. However, on presentation of the said cheque issued by the Corporate Debtor before the Bank, the same was returned on 19.05.2015 with an endorsement insufficient funds'. The letter dated 22.01.2015 and the cheque issued by the Corporate Debtor dated 01.05.2015 are placed at pages 68 and 69 of the typed set filed with the Application. 9. The Operational Creditor has also drawn the attention of this Bench towards the Minutes of Meeting singed by the parties, copy of which is placed at pages 76 and 77 of the typed set filed with the Application wherein it has clearly been admitted that the Corporate Debtor will provide fund of ₹ 80 lakhs and will complete the project by March, 2016 or assign some property for disposal to get funds for completion of project. In other words, the construction of the flats has been handedover but remaining work was not completed by the Corporate Debtor, du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Operational Debt as defined under Section 5 (21) of the I B Code, 2016. 13. The Operational Creditor has sent a Demand Notice dated 16.01.2018 under Section 8 of the I B Code, 2016, to the Corporate Debtor wherein the total amount of debt with interest is ₹ 115 lakhs, along with ₹ 31,08,588/- is claimed. The JDA and other documents, under which debt has become due, are being referred in the preceding paragraphs. The copy of the notice is placed at pages 111 to 114 of the typed set filed with the Application. 14. The Operational Creditor has also fulfilled the requirements of Section 9 (3) (b) (c) of the I B Code, 2016, by filing Affidavit, wherein under para 2, it has been deposed that notice of demand had been served in Form 3 which was issued on 16.01.2018 by the Operational Creditor and for the first time, some issues have been raised by the Corporate Debtor in its reply dated 29.01.2018. However, no prior notice of any dispute had been sent and this was an afterthought only in response to notice sent in Form-3 by the Operational Creditor. The copy of the Affidavit is placed at pages 9 to 10 of the typed set filed with the Application. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Counsel for the Operational Creditor has again referred to the document placed at page 64 of the typed set filed with the Application which gives complete picture of the pending work and estimation therefor, that has been got done by the Operational Creditor as was agreed upon by the Corporate Debtor, but the payments were not made by the Corporate Debtor, due to which instant application under Section 9 of I B Code, 2016, has been filed against the Corporate Debtor. 18. The Counsel for the Corporate Debtor during the course of arguments has submitted that the Operational Creditor is in dominating position and is oppressing the Corporate Debtor, but there is no evidence on record that at any point of time, the Corporate Debtor has knocked the door of any legal forum to get JDA cancelled or any other communication which has been made between the parties as has been referred to hereinabove. Therefore, the argument that has been advanced by the Corporate Debtor is not supported by any of the documents placed on record. It is worthwhile to record that during the course of arguments, the Counsel for the Corporate Debtor has submitted that if the Power of Attorney is provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recommended by the IBBI. There is no disciplinary proceedings pending against the IRP and his name is reflected in IBBI website. The IRP shall file the declaration disclosure statement in the Registry of NCLT, Chennai Bench, within two working days from the date of the receipt of this Order. The IRP is directed to take charge of the Corporate Debtor's management immediately. The IRP is also directed to cause public announcement as prescribed under Section 15 of the I B Code, 2016, within three days from the date the copy of this Order is received, and call for submissions of claim by the creditors in the manner as prescribed. 23. The IRP shall comply with the provisions of Sections 13 (2), 15, 17 18 of the 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 for the purpose of discharging his functions under Section 20 of the I B Code, 2016. 24. The Operational Creditor and the Registry are directed to send the copy of this Order to IRP with immediate effect, so that he could take charg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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