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TMI Blog2020 (2) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... record that the respondent never raised any dispute on receipt of demand notice issued under Section 8 of the I B Code and has also admitted in reply that the corporate debtor has not replied to the demand notice by way of raising any dispute. This adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of IB Code as enshrined in the Code. Moreover, the corporate debtor admitted in his reply that he has already made part payment towards the total dues so claimed by the applicant. That, service is complete and no dispute has been raised by the respondent at any point of time. That, Applicant is an Operational Creditor within the meaning of sub-section (5) of Section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force. The Application filed by the Applicant is complete in all respects and is in accordance with the I B Code and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equests, the respondent company did not make any payment and, therefore, total outstanding of ₹ 31,74,197/- (Rupees thirty-one lacs seventy-four lacs one hundred ninety-seven only) is due from the respondent company as per the details placed at page No. 15-39 of the instant petition. The claim raised by the petitioner is against the supplies made during the period from 15.10.2015 to 06.04.2016. 5. In support of its claim, the petitioner has submitted copy of the demand notice dated 31.05.2018 along with copy of invoices and track report of delivery of demand notice, copy of the ledger accounts, copy of bank statement and table showing computation of default by corporate debtor. 6. The applicant has also filed additional affidavit in support of the instant application. 7. The respondent/corporate debtor has filed affidavit in reply enclosing therewith copy of accounts of the respondent company with applicant and financial results of the respondent company for the year 2017-18 showing that it is a going concern and the business relations with the applicant were smooth. 8. In the reply, the respondent has submitted that the averments and statements made by the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or produced on record to support the contention. On one hand the respondent claims that the goods supplied were of inferior quality, on the other hand record shows that the respondent had made last payment on 30.06.2016. Had there been any serious complaint about the quality of goods supplied by the applicant, the respondent should have returned the goods and/or would have retained the payment. 12. On perusal of the records it is also found that only after filing the instant application by the operational creditor the respondent has raised the dispute regarding the quality of goods. It is also a matter on record that the respondent never raised any dispute on receipt of demand notice issued under Section 8 of the I B Code and has also admitted in reply that the corporate debtor has not replied to the demand notice by way of raising any dispute. 13. It has been observed in Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. [2017] 85 taxmann.com 292/144 SCL 37 (SC) that while examining an application under Section 9 of the Act, will have to determine the following: - (i) Whether there is an operational debt as defined exceeding ₹ 1.00 lac (See Section 4 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 13(l)(b) of the Code. 17. From the above stated discussion and on the basis of material available on record it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code. 18. The petition is, therefore, admitted and the moratorium is declared for prohibiting all of the following in terms of sub-section (1) of Section 14 of the Code: - (i) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (ii) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (iii) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (iv) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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