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TMI Blog2020 (10) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... or invoking CIRP in terms of Section 9 of the Code, the present application is found complete and the default of debts is established. Hence, the present petition deserves admission. Petition admitted - moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of service provided by the operational creditor and further as per the agreement, it is mandatory that all the disputes between the parties have to be resolved by the sole arbitrator and further it support of his contention the learned counsel for the corporate debtor has relied upon the judgment of Hon'ble NCLAT, passed in the matter Drulum India Pvt. Ltd. v/s Sharma Kalypso Pvt. Ltd. 7. It is further contended that the according to the judgment of apex Court in Mobilox Innovations, the dispute between the parties is related to plausible dispute and it is also stated in the counter filed by the corporate debtor that the balance amount due and payable by the corporate debtor at best is ₹ 7,67,664/- and the corporate debtor is ready to pay. 8. In reply to this, the counsel for the operational creditor has relied upon the judgment of NCLT, Delhi Bench in the matter of M/s. Suresh Chand & Sons LLP v/s M/s. Bright Buildtech Private Limited and argued that the dispute regarding the quantum of debt would not amount to pre-existing dispute and also argued that the order of NCLAT in Drulum India Pvt. Ltd. v/s Sharma Kalypso Pvt. Ltd. on which the petitioner has relied has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor has been defined under Section 5(7) as a person to whom a financial debt is owed and a financial debt is defined in Section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5(21) means a claim in respect of provision of goods or services. 28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant Under the explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor- it need not be a debt owed to the applicant financial creditor. Under Section 7(2), an application is to be made under sub-section (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is "due" i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise." 12. From the aforesaid finding of the Hon'ble Supreme Court, it is clear that the claim even if disputed, if default is more than ₹ 1 lakh, the Appellant will initiate the proceedings against the 'Corporate Debtor'. Submission is made on behalf of the Appellant that the amount disputed by the 'Corporate Debtor' amounts to existence of dispute but such submission cannot be accepted. It does not come within the meaning of existence of dispute. Dispute raised regarding quantum of amount in the absence of any suit or arbitration or other evidence, it cannot be said to be pre-existing dispute. In view of the foresaid decision, this Adjudicating Authority is of the view that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thwith stating: (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely; (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing off 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 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. Explanation.-For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a licence, permit, regi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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