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TMI Blog2020 (3) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent. 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 - . Here in this case the application is in proper format as prescribed under I B Code 2016 and is complete in all respect and is not barred by any law. It is a fit case to initiate Insolvency Resolution Process by admitting the Application under section 9(5)(1) of the Code - Petition admitted - moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly, in light of the breach of the MOU by the corporate debtor, the whole debt has become due and payable to the operational creditor. That, the operational creditor was constrained to issue a demand notice on 19.02.2018 under section 8 in accordance with the provisions of the IB Code, but no reply has been received from the corporate debtor. 5. In support of its claim, the petitioner has submitted copy of the following documents:- Sl. No. Particulars Page No. 1 Purchase orders dated 05.06.2015 and 04.02.2017 1-2 2 Invoices 3-12 3 Receipts issued by the transporter evidencing the delivery of the goods to the corporate debtor 13-22 4 Working computation of the calculated interest amount of ₹ 46,03,954.00 23 5 e-mail dated 26.11.2017 24 6 MOU dated 05.12,2017 25-30 7 Demand notice dated 19.02.2018 along with annexures and proof of dispatch and delivery 31-70 8 Ledger account maintained by operational creditor 71-76 9 Copy of bank statements 77-664 10 Board resolution dated 31.01.2018 authorising Mr. Arvind Kumar Agarwal 666 11 Written communication in form II of proposed IRP 667-669 6. The corporate debtor filed affidavit in reply c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders raised by the corporate debtor, there was no agreement/condition as to payment of interest it is alleged that the corporate debtor has never agreed to the interest, the mention of interest in the invoices by the petitioner is unilateral act which is contrary to the terms and conditions contained in the contract i.e. the purchase order, the petitioner has never demanded interest from the respondent and the petitioner has also In fact not actually accounted for interest in its books. 13. On perusal of the reply it is also found that in para 12, the corporate debtor has claimed to have made total payment of ₹ 78,45,963/- to the operational creditor on different dates between 01.08.2018 and 25.01.2019. On verifying the records filed by the operational creditor it is found that the operational creditor has acknowledged the first three payments total amounting to ₹ 25,00,000/-, made through RTGS i.e. ₹ 10,00,000/- on 01.08.2018; ₹ 10,00,000/- on 27.08.2018 and ₹ 5,00,000/- on 28.08.2018. On perusal of the records it can be seen that the corporate debtor has not furnished any details other than the date of payment in respect of the remaining four payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able in as much as the invoices contain the interest clause. 16. On perusal of the reply filed by the corporate debtor it is also observed that more stress is made towards the issue of interest and the main defence raised by the corporate debtor that "there is no agreement between the parties on payment of interest towards overdue payments as per the purchase orders placed on the operational creditor" is illogical and without any justification. 17. It is also a fact that amount is due and payable to the operational creditor which is above ₹ 1.00 lac as per section 4 of the I & B Code and no dispute is ever raised by the corporate debtor nor the same is barred by law of limitation. 18. It is settled by Hon'ble Supreme Court in Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. [2017] 144 SCL 37 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as proposed the name of Mr. Umesh Ved to act as Interim Resolution Professional. Therefore, this Adjudicating Authority hereby appoint Mr. Umesh ved, 304,shoppers Plaza-v, OPP, Municidal Market, C.G. Road, Navrangpura, Ahmedabad 380 009 (Mobile 98250 35998) having registration No. IBBI/IPA-002/IP-N00136/2017-18/10376 to act as an interim resolution professional under Section 13(l)(c) of the Code. 23. Section 13 of the Code enjoins upon the Adjudicating Authority to exercise its discretion to pass an order to declare a moratorium for the purposes referred to in Section 14, to cause a public announcement of the initiation of corporate insolvency resolution and call for submission of claims as provided under section 15 of the Code. Sub-section (2) of section 13 says that public announcement shall be made immediately after the appointment of Interim Insolvency Resolution Professional. This Adjudicating Authority direct the Insolvency Resolution Professional to make public announcement of initiation of Corporate Insolvency Process and call for submission of claims under section 15 as required by section 13(l)(b) of the Code. 24. From the above stated discussion and on the basis of mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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