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TMI Blog2019 (9) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated that the operational creditor issued various invoices from February 29, 2008 to October 1, 2009 and the debt is due from the date of first invoice, i. e., February 29, 2008 on account of consulting engineers services. In Part 4 of Form 5 the total amount of debt is stated to be Rs. 53,40,453 which includes principal amount of Rs. 23,86,605 and interest amount of Rs. 29,53,830 at 10 per cent. per annum on the delayed part. 3. A demand notice in Form 3 and Form 4 is stated to be issued on September 28, 2018 (annexure A7 (colly) of the petition). The demand notices were accompanied by the duly issued invoices in the name of corporate debtor along with debit notes certified by chartered accountants, copies of ledger in the books of the operational creditor and copies of contracts. The demand notice in Form 3 and Form 4 is stated to be served by speed post on the corporate debtor on October 1, 2018 and October 5, 2018 (page Nos. 52 to 55 of this petition). 4. The petition is signed by Shri Harjeet Singh Bola, director-cum-authorised signatory of the operational creditor and Shri Harjeet Singh Bola has also filed an affidavit dated December 7, 2018 verifying the contents of Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, the petitioner-company has sent reply dated November 1, 2018 to the demand notice of the petitioner which is at page Nos. 211- 212. 9. In response to the reply filed by the respondent-corporate debtor, the authorised representative of the petitioner filed rejoinder dated June 13, 2019 (Diary No. 3012 dated June 13, 2019) stating therein that the respondent-company has wrongly interpreted the order of the hon'ble Punjab and Haryana High Court passed in Civil Revision No. 548 of 2016 as it is up to the petitioner to choose an appropriate forum under peculiar circumstances. Further it is stated that 50 per cent. shares of the company does not give any right to the respondent to wind up a solvent company and without paying royalty to the petitioner, the respondent is using the drawings, layouts and engineering know-how of the technology belonging to the German shareholder. Also reliance is placed on the decision in the case of DF Deutsche Forfait AG v. Uttam Galva Steel Ltd. [2017] 204 Comp Cas 430 (NCLT) that in case of delayed payments, interest can be claimed as an operational debt as well. 10. We have carefully considered the submissions of learned counsel for the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defines operational debt to inter alia mean a claim in respect of the provision of goods or services. As discussed above, the debt due by the corporate debtor to the operational creditor arises out of provisions of services. The application for initiation of CIRP by the operational creditor under section 9 of the Code can be made where the operational creditor does not receive payment from the corporate debtor of the operational debt. The issue whether there is any relationship between the operational creditor and the corporate debtor is therefore, not relevant. The objection is not accepted. 13. Learned counsel for the corporate debtor has argued that a suit for declaration and a suit for recovery was filed by the operational creditor against the corporate debtor seeking the recovery of Rs. 37,45,586. It is submitted that the respondent-corporate debtor appeared in both the cases and prayed to refer the matter to arbitration in view of clause 17 and also deed of adherence (annexure 4) of co-operation agreement dated June 14, 2006 and ultimately the hon'ble Punjab and Haryana High Court vide its judgment dated July 19, 2018 passed in C. R. No. 548 of 2016 and C. R. No. 6163 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of learned counsel for the corporate debtor that arbitration proceedings are pending, cannot be accepted. 15. Learned counsel for the corporate debtor has stated that a petition for winding up of the operational creditor has been filed by the corporate debtor under section 272 of the Companies Act, 2013. It has been requested that this petition be decided before any decision is taken on the petition under section 9 of the Code. Learned counsel for the corporate debtor has not been able to show any provision under which the plea raised can be accepted. The two proceedings are independent of each other. 16. In view of the above discussion, the contention raised by the corporate debtor in its reply to the demand notice as well as to the reply filed during the present proceedings are not accepted. 17. The provisions of section 9(5)(i) of the Code are as follows : "(5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete ; (b) there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of section 14(3) shall however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator and to a surety in a contract of guarantee to a corporate debtor. 22. 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. 23. The Law Research Associate of this Tribunal has checked the credentials of Mr. Sudhir Kumar Jain and there is nothing adverse against him. In view of the above, we appoint Mr. Sudhir Kumar Jain, Registration No. IBBI/ IPA-003/IP-N000131/2017-2018/11457, Mobile No. 9888200222, 7009012001, e-mail id : [email protected] the interim resolution professional, with the following directions : (i) The term of appointment of Mr. Sudhir Kumar Jain shall be in accordance with the provisions of section 16(5) of the Code ; (ii) In terms of section 17 of the Code, from the date of this appointment, the powers of the board of directors shall stand s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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