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TMI Blog2020 (10) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor has defaulted in paying the dues and the present application is within limitation as it was filed on 02.08.2019. This Adjudicating Authority is inclined to admit this petition and initiate CIRP of the Respondent - Petition admitted - moratorium declared. - (IB) 1874 (ND)/2019 - - - Dated:- 13-2-2020 - Abni Ranjan Kumar Sinha, Member (J) And Saroj Rajware, Member (T) For the Appellant : C.S. Gupta, Prateek, Sachit, Manisha, Faizi For the Respondent : Mihika and Yasharth ORDER Abni Ranjan Kumar Sinha, Member (J) 1. The present petition has been filed under Section 9 of the Insolvency Bankruptcy Code, 2016, (hereinafter referred to as the Code ), praying for initiation of Corporate Insolvency Resolution Process of the Corporate Debtor on grounds of its inability to liquidate its operational debt. 2. As per averments made in the petition, the Corporate Debtor used to buy raw material goods from the Operational Creditor for which the Operational Creditor used to raise bills, invoices on the Corporate Debtor from time to time and it was maintaining running account as the payments were made from time to time. The Operational Creditor had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93,189/- is illegal. A perusal of the claim submitted by the Applicant shows that there are several invoices mentioned and annexed with the claim which are neither stamped nor signed. c. That the following invoices have been duly received and stamped by the Operational Creditor:- S. No. Date Invoice Number Amount (Rs.) 1 23rd June, 2016 2016-2017/15/187 6,060.00 2 23rd June, 2016 2016-2017/15/192 5,680.00 3 24th June, 2016 2016-2017/15/200 2,990.00 4 25th June, 2016 2016-2017/15/213 2,200.00 5 30th June, 2016 2016-2017/15/257 6,302.00 6 8th July, 2016 2016-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional Creditor. 7. Further, during the course of arguments, it was contended by the Corporate Debtor that the claim made by the Operational Creditor is not valid as no purchase orders have been filed with the petition according to which the Operational Creditor is claiming a principal amount of ₹ 18,02,043/-. It was further submitted that out of 34 invoices attached with the petition from page No. 26 to 60, only 6 invoices on page 45 to 50 are served by the Operational Creditor which are acknowledged by the corporate Debtor by stamping the invoices. 8. We have gone through the application, reply and the documents filed by both the parties and heard the arguments and perused written submissions made by both the parties. 9. At this juncture, we would like to refer Section 8 of the Code and the same is quoted below:- 8. Insolvency resolution by operational creditor- (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute (Section 8(2)(a)). What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing - i.e. it must exist before the receipt of the demand notice or invoice, as the case may be......... 25. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an operational debt as defined exceeding ₹ 1 lakh? (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cupied by or in the possession of the corporate debtor. (2) 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. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process. 13. The Operational Creditor has proposed the name of Mr. Manohar Lal Vij as the IRP. His details are as registration No. IBBI/IPA-001/IP-P01480/2018-19/12269, email: [email protected], Mob.: +919811029537. The consent of the Mr. Manohar Lal Vij is on record along with the copy of his certificate and there is no disciplinary proceeding pending against the proposed IRP. We accordingly confirm his appointment as the IRP. He shall take such other and further steps as are required under the statute, more specifically in terms of Section 15, 17 and 18 of the Code and file his report. 14. The Operational Creditor is directed to deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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