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TMI Blog2020 (4) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- dated 22-07-2015 has been received by the Corporate Debtor from which it could be presumed that the same was received in lieu of the services provided by the Operational Creditor. It could also be inferred from the ledger of the Corporate Debtor (Page 20 of the petition) that the due date for the payment for the last invoice raised on 23-07-2015 is 22-08-2015. It is therefore held that the period of limitation starts from the date 22-08-2015 itself and the petition is very well within the limitation period as the petition has been filed on 17-08-2018 with this Tribunal. The operational debt remains unpaid, the demand notice was delivered to the corporate debtor and reply was received within the stipulated 10 days period. In view of the satisfaction of the conditions provided for in section 9(5)(i) of the Code, the petition for initiation of CIRP is deserves to be admitted - petition admitted - moratorium declared. - CP (IB) NO. 285/CHD/PB/2018 - - - Dated:- 7-2-2020 - Ajay Kumar Vatsavayi, Judicial Member And Pradeep R. Sethi, Technical Member For the Petitioner : Vaibhav Sharma, Adv. For the Respondent : D.S. Sobti, Adv. JUDGMENT AJAY KUMAR VATSA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport. The demand notice in Form 3 4 is the part of record and the same is at Annexure C. Copy of tracking report, showing the delivery of article is at Annexure D. Mr. Gaurav Dutt, Executive of the petitioner-operational creditor has also filed his affidavit, stating therein that the petitioner-operational creditor has not received any reply within the stipulated period of 10 days from the respondent-corporate debtor to its demand notice dated 04-01-2018. In the said affidavit, it is also stated that no dispute is communicated by the respondent-corporate debtor and that no payment has been received during this period. The affidavit is annexed at Annexure B of the petition. 6. Notice of this petition to show cause as to why this petition be not admitted was issued to the respondent-corporate debtor on 23-10-2018. 7. The respondent-corporate debtor filed its reply vide Diary No.3497 dated 18-07-2019, wherein the respondent-corporate debtor denied all the allegations made in petition, being false, malicious and against the provisions of the Code. The respondent-corporate debtor in its reply stated that the petitioner-operational creditor was providing two kinds of services to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application.' The facts of the present case are being examined with reference to the judgment of the Hon'ble Supreme Court. 11. The present petition is filed by the operational creditor since the payment for the invoices issued for the period of 28-09-2010 to 23-07-2015 has not been paid by the corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er deducting the amount of total of three debit notes is ₹ 17,03,827/- is ₹ 2,15,644/- which is more than ₹ 1 lac and is sufficient for the purpose of admission of C.P. 15. With regard to the issue of Limitation as raised by the Corporate Debtor, the Operational Creditor has attached the bank statement of ICICI Bank (Page 148 of the petition) wherein it could be seen that the last payment of ₹ 50,000/- dated 22-07-2015 has been received by the Corporate Debtor from which it could be presumed that the same was received in lieu of the services provided by the Operational Creditor. It could also be inferred from the ledger of the Corporate Debtor (Page 20 of the petition) that the due date for the payment for the last invoice raised on 23-07-2015 is 22-08-2015. It is therefore held that the period of limitation starts from the date 22-08-2015 itself and the petition is very well within the limitation period as the petition has been filed on 17-08-2018 with this Tribunal. 16. In view of the above discussion, this petition deserves to be admitted. 17. The provisions of section 9(5)(i) of the Code are as follows:- (5) The Adjudicating Authority shall, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in consultation with any financial sector regulator and to a surety in a contract of guarantee to a corporate debtor. 21. The order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under section 33 as the case may be. 22. Under sub-section (4) of Section 9 of the Code, the operational creditor may propose the name of Resolution Professional to be appointed as Interim Resolution Professional but it is not obliged to do so. In the instant case also, the operational creditor has not proposed the name of any Resolution Professional to be appointed as Interim Resolution Professional. Section 16(3)(a) of the Code says that where the application for Corporate Insolvency Resolution Process is made by an operational creditor and - (a) no proposal for an interim resolution professional is made, the Adjudicating Authority shall make a reference to the Board for the recommendation of an insolvency professional who may act as an interim resolution professional; (b) ** ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment and in accordance with the Code of Conduct' governing his profession and as an Insolvency Professional with high standards of ethics and moral; (iv) The Interim Resolution Professional shall cause a public announcement within three days as contemplated under Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 of the initiation of the Corporate Insolvency Resolution Process in terms of section 13 (1) (b) of the Code read with section 15 calling for the submission of claims against Corporate Debtor; (v) It is hereby directed that the Corporate Debtor, its Directors, personnel and the persons associated with the management shall extend all cooperation to the Interim Resolution Professional in managing the affairs of the Corporate Debtor as a going concern and extend all cooperation in accessing books and records as well as assets of the Corporate Debtor; (vi) The Interim Resolution Professional shall after collation of all the claims received against the corporate debtor and the determination of the financial position of the corporate debtor constitute a committee of creditors and shall ..... 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