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TMI Blog2020 (4) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... respect. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the applicant operational creditor. Respondent company also did not raise any dispute regarding the existence of operational debt. In fact, the claim of default committed by the corporate debtor has not been denied. Once the application is complete and in the absence of any dispute and with the subsistence of default, the application is liable to be admitted - on fulfilment of requirements of section 9 (5) (i) (a) to (d) of the Code, the present application is admitted. Application admitted - moratorium declared. - Company Petition (IB) No. 3127 (PB) OF 2019 - - - Dated:- 16-1-2020 - B.S.V. Prakash Kumar, Actg, President And S.K. Mohapatra, Technical Member P.S. Singh, Advocate for the Petitioner. Surjan Singh Shekhawat, Advocate for the Respondent. ORDER S.K. Mohapatra, 1. Mr. Prashantha H.M (Sole Proprietor of M/s Halgappa Trading Company) claiming as the operational creditor has filed this application under section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code') ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undred Twenty-Nine). 7. In support of its contention applicant has placed on record copy of relevant invoices, Copy of Ledger Account of Corporate Debtor for Financial Year 2016-17 to 2018-19, Copy of audited Financial Statement of applicant for the financial year 2017-18 and the Bank statement of applicant operational creditor from 1-4-2017 to 31-3-2018 including tabular statement showing computation of amounts due and the date of default. 8. Respondent company has filed its reply on 05-12-2019 mainly with the contention that it has already paid ₹ 8,42,99,900/- out of total amount of ₹ 9,74,37,329/- and has requested the applicant to grant some more time to pay the outstanding amount of ₹ 1,31,37,429/- as the corporate debtor is facing financial difficulty. There is an admission in the reply that balance outstanding claimed amount has remained unpaid as on date and the respondent has sought for some more time to pay the outstanding amount. 9. It is pertinent to mention here that default is defined in sec 3(12) in very wide terms as meaning non-payment of a debt once it becomes due payable, which includes non-payment of even part thereof. Even part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; (b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available; (d) a copy of any record with information utility confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available; and (e) any other proof confirming that there is no payment of any unpaid operational debt by the corporate debtor or suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisite notice under section 8 was duly served on the Respondent. In response to section 8 notice, respondent corporate debtor replied on 07-10-2019 acknowledging the outstanding amount and expressed its inability to pay the debt due to financial difficulty. In other words, the corporate debtor had not disputed the claim in its reply given in terms of sub-section (2) of section 8 of the Code. 17. The present application under section 9 of the Code has been filed in requisite Form-5, wherein it was specifically mentioned that in the reply received from the corporate debtor there has been admission of debt and default and no dispute was raised against the claim of the applicant operational creditor. The application under section 9 is thus complete and the required particulars have been furnished along with details of subsistence of default. 18. Moreover, in compliance of section 9 (3) (a) of the Code the Petitioner has placed on record copy of relevant invoices, Copy of Ledger Account of Corporate Debtor for Financial Years 2016-17 to 2018-19, Copy of audited Financial Statement of applicant for the financial year 2017-18 and the Bank statement of applicant operational creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute?' 24. In the present application all the aforesaid requirements have been satisfied. It is seen that the application preferred by applicant operational creditor is complete in all respect. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the applicant operational creditor. Respondent company also did not raise any dispute regarding the existence of operational debt. In fact, the claim of default committed by the corporate debtor has not been denied. Once the application is complete and in the absence of any dispute and with the subsistence of default, the application is liable to be admitted. 25. Therefore, on fulfilment of requirements of section 9 (5) (i) (a) to (d) of the Code, the present application is admitted. 26. In terms of sub-section (6) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as maybe specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018 which has come into force w.e.f. 6-6-2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of section 14 (3) (b) of the Code. 32. The Interim Resolution Professional shall perform all his functions contemplated, inter alia, by Sections 15, 17, 18, 19, 20 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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