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TMI Blog2020 (4) TMI 504X X X X Extracts X X X X X X X X Extracts X X X X ..... he application filed by the Corporate Debtor stands dismissed. From the documents produced on record, it is evident that the claim falls within the period of limitation of 3 years and is not barred by limitation. The claim amount as made in the petition is also in excess of ₹ 1,00,000/- being the statutory minimum amount fixed under section 4 of the IBC, 2016 for approaching this Tribunal by the creditors, in the instant case by an Operational Creditor - the Application as has been filed by the Operational Creditor is admitted and consequently Corporate Insolvency Resolution Process is initiated - petition admitted - moratorium declared. - C.P. (IB) NO. 1305 OF 2018, M.A. NO. 962 OF 2019 - - - Dated:- 4-12-2019 - R. Varadharajan, Judicial Member And Anil Kumar B., Technical Member T. Parthasarathy, Counsel for the Applicant. P.J. Rishikesh, Counsel for the Respondent. ORDER R. Varadharajan, 1. The CP/1305/IB/2018 has been filed by the M/s. ABB India Limited (hereinafter referred to as Operational Creditor ) against M/s. Resurgent Power Projects Limited (hereinafter referred to as Corporate Debtor ) under section 9 of the Insolvency Bankrup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths from the date of LoI and synchronizing of the Plant within 16 months from the date of LoI. 7. After some delay, the project was successfully completed in line with the requirements under the LoI and the end user M/s. ISMT had also issued a Commissioning Certificate dated 09-10-2012. Thereafter, the Corporate Debtor has failed to make payments to the Operational Creditor. There was a balance of ₹ 2,64,95,645/- in addition to ₹ 1,40,45,342/- towards sale tax dues payable by the Operational Creditor with interest @ 18% p.a. with penalty for issuance of the C Forms. The Operational Creditor has sent a mail to the Corporate Debtor on 11-2-2013 claiming the above sum and also ₹ 1,21,24,285/- on the account of the additional scope of works, price escalation due to delay on the part of the Corporate Debtor. Various e-mails have also been exchanged between the parties to amicably resolve the dispute which never fructified. 8. Thereafter, the Operational Creditor has invoked the Arbitration clause under section 11 of the Arbitration and Conciliation Act, 1996 and filed O.P.No. 699/2014 and consequently the Hon'ble High Court of Madras has appointed Mr. Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thereafter, when the matter was taken up for final submissions on 31-7-2019, the Counsel for the Corporate Debtor stated that the Corporate Debtor has filed an O.P. No. 549/2019 on the file of the Hon'ble High Court of Madras challenging the Award under section 34 of the Arbitration and Conciliation Act, 1996 and this Tribunal directed the Corporate Debtor to place on record the interim stay order passed, if any, by the Hon'ble High Court of Madras. Thereafter, numerous opportunities were given to the Corporate Debtor to produce the interim stay order but none was produced. 13. In the meantime, after filing of the OP No. 549/2019, the Corporate Debtor on 5-8-2019 has filed an MA/962/2019 under section 60 of the IBC, 2016 and sought a relief to decide about the maintainability of the application filed by the Operational Creditor in CP/1305/IB/2018 as a preliminary issue before proceeding with the adjudication of the said application. In support thereof, the Counsel for the Corporate Debtor relied upon the Judgment of the Hon'ble Supreme Court in K. Kishan v. Vijay Nirman Co. (P.) Ltd. [2018] 97 taxmann.com 495/150 SCL 110. 14. On the issue of maintainability of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to the Demand Notice given by the Corporate Debtor is extracted hereunder; ...We submit that first of all non-contesting the Arbitration Award was itself our intention is to honour the said Award, eventhough there were grounds for contesting the same... ..We are making every effort to bring the situation to normalcy in the coming months. During this interim period, to honour the Award, we are able to pay a sum of ₹ 5 Lakhs per month commencing from June, 2018 together with interest @ 9% as per the terms of award passed by the Arbitrator... 17. It is an admitted fact that only after filing of the CP/1305/IB/2018, the Corporate Debtor has filed the O.P. No. 549 of 2019 challenging the arbitral award which cannot be considered as a pre-existing dispute as contended by the Ld. Counsel for the Corporate Debtor in view of the above stated facts. Hence, we find no merit in the submissions made by the Ld. Counsel for the Corporate Debtor and therefore the MA/962/2019 filed by the Corporate Debtor stands dismissed. 18. In relation to the CP/1305/IB/2018, as stated above, the Corporate Debtor in the Reply to the Demand Notice has categorically admitted its liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of this order. As a consequence of the Application being admitted in terms of Section 9(5) of the Code, the moratorium as envisaged under the provisions of section 14(1) and as extracted hereunder shall follow in relation to the Corporate Debtor: a. The institution of suits or continuation of pending suits or proceedings against the respondent including execution of any judgment, decree or order in any Court of law, Tribunal, arbitration panel or other authority; b. Transferring, encumbering, alienating or disposing of by the respondent any of its assets or any legal right or beneficial interest therein; c. Any action to foreclose, recover or enforce any security interest created by the respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. 22. However, during the pendency of the moratorium period in terms of section 14(2) and 14(3) as extracted hereunder: (2) The supply of essential goods or services to the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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