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TMI Blog2020 (5) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... e letter of authority authorizing Shri Pankaj Dharmadhikari is annexed as annexure P3. The power of attorney is filed as annexure P25 vide Diary No. 3690, dated September 27, 2018 and the affidavit is filed vide Diary No. 4510, dated November 19, 2018. There is also an affidavit in support of the contents of the application. 3. Kopargaon Ahmednagar Tollways (Phase-I) P. Ltd. (for short herein-after referred to as the "respondent" and/or "corporate debtor") is a company incorporated under the Companies Act, 1956 with authorized share capital of Rs. 5,00,000 and paid-up capital of Rs. 1,00,000. The CIN of the respondent-corporate debtor is U45203HR2012PTC047422 and its registered office is situated in District Gurugram in the State of Haryana and therefore, the matter falls within the territorial jurisdiction of this Tribunal. Copy of the master data of the respondent-corporate debtor is at annexure P2 of the petition. 4. The facts of the case, briefly, as stated in the petition, are that petitioner is the proprietorship concern of Mr. Darshan Anil Lodha engaged in the business of infrastructure, construction and related allied works. The respondent-company is primarily engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding amount within 180 days from the date of receipt of the said notice in terms of the share purchase SIBPL through the respondent-company made some payments to the petitioner between January 10, 2015 to June 9, 2015 totalling to an amount of Rs. 1,05,36,211 in part satisfaction of SIBPL's debt. The petitioner issued reminder letter dated June 12, 2015 and e-mails dated May 30, 2015 and June 20, 2015 and demanded payment of the outstanding amounts. The respondent-company replied to the said email dated June 20, 2015 on June 23, 2015 admitting the amounts paid out of the total outstanding due to the petitioner. SIIL and the respondent-company issued another joint letter on July 5, 2015 acknowledging and confirming their debt towards the petitioner which further stated that all the debts would be settled and paid by the respondent-company. The petitioner issued a demand notice dated September 11, 2017 under section 8 of the Code read with clause (a) of sub-rule (2) of rule 5 of the Code calling upon the respondent-company to repay the operational debt in full within 10 days from the receipt of the notice. After the death of Mr. Anil Bansal Lodha, Mr. Darshan Anil Lodha became th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the 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 unsup ported 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." 9. In annexure P18 dated July 5, 2015 of the respondent-corporate debtor written to the petitioner, categorically admitted and acknowledged the debt of Rs. 3,72,19,060 due to the petitioner. Thereafter, after adjusting the amount paid by the respondent-corporate debtor, the debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 15. Sub-section (4) of section 16 says that the Board shall, within ten days of the receipt of a reference from the Adjudicating Authority under sub-section (3), recommend the name of an insolvency professional to the Adjudicating Authority against whom no disciplinary proceedings are pending. 16. In this regard a letter bearing File No. 25/02/2019-NCLT, dated June 28, 2019 has been received from the National Company Law Tribunal, New Delhi forwarding therewith a copy of letter No. IBBI/IP/EMP/2018/02, dated June 24, 2019 along with the guidelines and the panel of reso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 13(1)(b) of the Code read with section 15 calling for the sub mission 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 co-operation 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 operational position of the corporate debtor constitute a committee of creditors and shall file a report, certifying constitution of the committee to this Tribunal on or before the expiry of thirty days from the date of his appointment, and shall convene first meeting of the committee within seven days of filing the report of constitution of the committee; and (vii) The interim resolution professional is directed to send regular progress report to this Tribunal every fortnight." A copy of this order be communicated to both the parties. Learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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