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TMI Blog2020 (10) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that till the last date of hearing, there has been no representation from the respondent-corporate debtor, hence the respondent can be proceeded ex parte and accordingly this CP may be admitted. Pre-existing dispute or not? - HELD THAT:- As a statutory requirement under Section 9(3)(b) of the Code, an affidavit dated 06.05.2019 (pages 20 21 of the petition) has been placed by the operational creditor stating that despite service of the demand notice dated 08.03.2019, till the date of filing of the present application, Corporate Debtor did not raise any dispute qua the outstanding payment and even no dispute was pending or arose by the corporate debtor qua the outstanding amount even prior to the sending the statutory demand notice dated 08.03.2019. We have held above that the demand notice in Form No.3 was properly delivered by the Operational Creditor and no pre-existing dispute is proved - It has been shown that the corporate debtor has failed to make payment of the ₹ 19,00,000/- as due after receiving payment of ₹ 8 lakhs vide two transactions, first an amount of ₹ 3 lakhs on 09.04.2019 and secondly ₹ 5 lakhs on 22.04.2019 till date. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,99,000/-. The CIN of the respondent-corporate debtor is U15143PB1983PTC005567 and its registered office is situated in Muktsar in the State of Punjab 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-1 of the petition. 3. The facts of the case, briefly, as stated in the petition, are that the petitioner-operational creditor is engaged in manufacturing and trade of Rice Bran Oil. It is stated that Corporate Debtor had agreed to supply Rice Bran Oil Raw Grade-1 to the petitioner-operational creditor and on the account of financial constraint, the Corporate Debtor had demanded a payment of ₹ 1,00,00,000 (Rupees One Crores) in advance for the supply of Rice Bran Oil Raw Grade-1. The petitioner had advanced the Corporate Debtor an amount of ₹ 1 crore on 04.11.2015 from its bank account maintained with Punjab National Bank bearing account No.3881008700003028 through RTGS. Copy of RTGS form is placed as Annexure-3. It is also stated that as after receiving advance payment of ₹ 1 crore on 04.11.2015 for the supply of the goods as promised, the corporate debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the corporate debtor w.e.f. 01.04.2015 to 01.05.2019 is appended as Annexure-4 (pages 25 to 27 of the petition). 8. Notice of this petition was issued to the Corporate Debtor on 13.06.2019 to show cause as to why this petition be not admitted. 9. On the last date of hearing, the following order was passed:- Affidavit of service was filed by the petitioner vide Diary No.3976 dated 08.08.2019 in proof of service of the notice of the CP on the respondent. However, thereafter since there was no representation for the corporate debtor, their right to file reply was forfeited. In spite of listing the matter today for arguments, still there is no representation for the respondent/corporate debtor. Hence the respondent is set ex parte. 2. Heard the learned counsel for the petitioner. Order reserved. 10. We have heard the learned counsel for the operational creditor and have also perused the records. 11. The first issue for consideration is whether the demand notice in Form No.3 dated 08.03.2019 was properly served. The demand notice dated 08.03.2019 was sent at the address as per the master data at Page No.22 of the petition in which the registered office is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. We have gone through the contents of the application filed in Form No.5 and find the same to be complete. As discussed above, there is an total unpaid operational debt (in default) of ₹ 19,00,000/- (Rupees Nineteen Lakhs Only). It is stated that demand notice was sent for an amount of ₹ 27,00,000/- which was pending against the corporate debtor as on the date of demand notice. However, after sending the demand notice dated 08.03.2019, corporate debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofessional as below. 18. We declare the moratorium in terms of sub-section (1) of Section 14 of the Code, as under:- a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor 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 corporate debtor 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 corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Operational 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 corporate debtor. 19. It is further directed that the supply of essential goods or services to the corporate debtor as may be specified, shall not be terminated or suspended or interrupted during moratorium period. The provisions of Section 14(3) shall however, not apply to such transactions as may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al with the following directions: - i.) The term of appointment of Mr. Anjum Goyal 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 suspended and the management of the affairs shall vest with the Interim Resolution Professional and the officers and the managers of the Corporate Debtor shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the Code, including taking control and custody of the assets over which the Corporate Debtor has ownership rights recorded in the balance sheet of the Corporate Debtor etc. as provided in Section 18(1) (f) of the Code. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the Corporate Debtor; iii.) The Interim Resolution Professional shall strictly act in accordance with the Code, all the rules framed ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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