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TMI Blog2019 (10) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... on is filed within the period of limitation. The present application is complete after hearing learned counsel for both the parties and perusing the documents on records it goes beyond doubt that the Applicant is entitled to claim its dues, which remain uncontroverted by the Corporate Debtor, establishing the default in payment of the operational debt beyond doubt. In the light of above facts and records the present application is admitted. Application admitted - moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.06.2013. 34,60,240/- Total 3,21,24,511/- 6. It is submitted that the respondent has only paid ₹ 2,62,96,033/- and the outstanding amount which is due and payable by the respondent is ₹ 58,28,478/- along with interest of ₹ 36,73,378/- @18% as on 30.09.2017, totalling to a sum of ₹ 95,01,856/- which is still pending. In part IV of the application, the operational creditor has given the details of the total amount of operational debt and the transactions on account of which the debt fell due: PARTICULARS OF OPERATIONAL DEBT 1. Total amount of debts Details of transactions on account of which debt fell due - And the date form which such debt fell due ₹ 95,01,856/- Agreement dated 09.12.2011 26.08.2013 2. Amount claimed to be in default and the date on which the default occurred ₹ 95,01,856/- 26.08.2013 7. It is submitted that the applicant had issued a legal notice under section 271 of the Companies Act, 2013 dated 20.05.2015 to the respondent to pay the aforesaid amount of ₹ 58,28,478/- along with interest @18% failing which petition for winding up be filed against corporate debtor. The respondent had replied to the said legal n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of its sister concern namely Mitilite Electric Company. It is further submitted that when the subject agreement was entered into between both the applicant and the respondent company w.r.t. the supply of certain electric panels and others, it was mutually agreed between both the parties that the imported materials particularly the bus duct will be supplied from the Mitilite Electric Company since that was a trading material and the applicant company itself does not trade in it. It is also submitted that the respondent has made prior payments to the applicant for the work done by the Mitilite Company with respect to the project. It is further submitted by the applicant that the amount paid to the Mitilite Electric Company Private Limited by the applicant is the same and not different. 12. Under sub-section 5 (i) of section 9 of the code, the application filed by the applicant operational creditor has to be admitted on satisfaction that: (a) the application made is complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect in view of the rejoinder filed by the applicant as discussed above. The applicant is correct in stating that the invoices has been dealt in its affidavit dated 06.03.2018 where the applicant has annexed the invoices evidencing receipt by the respondent. Further the claimed amount of ₹ 34,60,240/-was transferred by the applicant to the account Mitilte Electric Company, a sister concern of the applicant on behalf of the respondent and thus the applicant is entitled to recover the same from the respondent which is covered under the amount claimed to be in default. The corporate debtor has failed to show that they have not agreed to said payment being made to its sister concern Mitilite company. 16. Hence this Hon'ble Tribunal is of the view that the contentions of the respondent are not plausible and requires further investigation. Further the dispute raised by the corporate debtor is a patently feeble legal argument and an assertion of fact unsupported by evidence. Therefore, this Hon'ble tribunal is of the opinion that there is no merit in the dispute to be as pre-existing one. 17. Learned counsel for the applicant has argued that all requirements of section 9 of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired under IBBI (insolvency Resolution Process for Corporate Persons) Regulations, 2016 within a period of one week from the date of this order. 23. We direct the Operational Creditor to deposit a sum of ₹ 2 lakhs with the Interim Resolution Professional namely Mr. Rakesh Kumar Jain to meet out the expense to perform the functions assigned to him in accordance with regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days for the date of receipt of this order by the Operational Creditor. The amount however be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Operational Creditor. 24. As a consequence of the application being admitted in terms of Section 9(5) of IBC, 2016, we also declare moratorium in terms of Section 14 of the Code. The necessary consequences of imposing the moratorium flows from the provisions of Section 14(l)(a)(b)(c)&(d). Thus, the following prohibitions are imposed: "(a) the institution of suits or continuation of pending suits or proceedings against th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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