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TMI Blog2020 (1) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... the invoice dated 07.01.2014 reflecting the details of order placed by the corporate debtor vis-a-vis the terms of payment - thus, the respondent has defaulted in payment of the debt and has admitted the operational debt from time to time. This adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of I B Code. That, service is complete and no dispute has been raised by the respondent at any point of time. That, Applicant is an Operational Creditor within the meaning of Section 5 sub-section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force. Application admitted - moratorium declared. - C. P.(I.B.) No. 268/9/NCLT/AHM/2018 - - - Dated:- 22-1-2020 - Manorama Kumari, Member (J) And Chocklingram Thirunavukkarasu, Member (T) For the Appellant : Manan Patel, Abhay Hogi, Advocates and Prateek Goyal For the Respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est on the outstanding dues. That vide letter dated June 03, 2015 the corporate debtor further assured to furnish personal guarantees in their individual capacities in favour of the operational creditor, in case of failure of the corporate debtor to clear all outstanding dues within stipulated time period i.e. within the said 18 months. That, the corporate debtor completely failed to honour the said undertaking. However, the corporate debtor thereafter made certain ad-hoc payments which was adjusted by the operational creditor against the principal and interest on the outstanding dues. That, inspite of the accepted commitment and the agreed timelines, the corporate debtor has failed to make payment of the outstanding dues. That the detailed chart showing the date of each of these transactions, credit terms and date from which the debt fell due is annexed to the application (page No. 383) marked as Annexure - 2. 7. It is further stated by the applicant that, despite efforts, having failed to receive the payment of debt from the corporate debtor, the applicant had issued demand notice dated 11.05.2018 in form No. 4. That, the corporate debtor has not raised any objection with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no default on the part of the corporate debtor. There is dispute with regard to the operational debt, and hence the amount claimed is not payable. Findings 11. Heard at length the learned lawyer appearing for both the sides and perused the documents annexed to the petition/reply. 12. On perusal of the records, prima facie, it appears that the objections raised by the corporate debtor are imaginary and not supported by any documents, whereas, the documents produced on record by the operational creditor is enough to establish that operational debt is due and payable to the applicant from the respondent which was acknowledged on 03.06.2015 and thereafter also made some payment from time to time on instructions of corporate debtor. 13. At this juncture it is desirable to refer para No. 3 4 of letter dated 3rd June, 2015 written by the corporate debtor and addressed to the applicant. For the sake of brevity, 3rd and 4th para of the said letter is reproduced here below; - In furtherance to your continuous follow-ups, our commitments to pay the said outstanding dues and various discussions between both the companies herein, we being the promoters/Directors of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is a letter dated 2nd March, 2017, addressed to the applicant by the respondent stating that the corporate debtor has diverted its funds to its another joint venture viz. PPESPL and seeking more time for settling the outstanding debt. 17. On perusal of the records it is found that at page No. 15 to the application, the petitioner has provided a copy of the invoice dated 07.01.2014 reflecting the details of order placed by the corporate debtor vis-a-vis the terms of payment. 18. From the above discussions it is evident that the respondent has defaulted in payment of the debt and has admitted the operational debt from time to time, the last being copy of ledger book annexed to the reply at page No. 124. 19. It has been observed in Mobifox Innovative Private Limited vs. Kirusa Software Private Limited [2017] 1 IBJ(JP) 2 SC that while examining an application under Section 9 of the Act, will have to determine the following: - (i) Whether there is an operational debt as defined exceeding ₹ 1.00 lac (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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (1) of Section 14 of the Code: - (i) 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; (ii) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (iii) 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); (iv) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 24. It is further directed that the supply of goods and essential services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. The provisions of sub-section (1) shall, however, not apply to such transactions as may be notified by the Central Government in consultation with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 54.20 Crores and factory valuation of Corporate Debtor is ₹ 72-73 Crores. But a distress sale pursuant to appointment of IRP would hardly realize money at 50% or less valuation, which would not be sufficient to realize debt of the Secured Creditor. 32. The Petitioner/Intervener further stated that the Corporate Debtor has so far received large amount of term loans amounting to ₹ 15-20 Crores with interest and even today, Corporate Debtor is regular in repaying the loan amount with interest. Under such circumstances, if the application under Section 9 of the IB Code is admitted, in that event it would not yield any fruitful and material result. 33. Petitioner/Intervener submitted that so far no other Creditor, whether Secured or Unsecured, has raised plea regarding the credit worthiness of the Corporate Debtor. It is further stated that Corporate Debtor is a going concern and livelihood of number of persons are dependent on the Corporate Debtor, who will lose their employment in the event of admission of this IB application. 34. Heard the Petitioner/Intervener and also seen the documents annexed therein, while dealing with the application under section 9 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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