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TMI Blog2019 (11) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... on that there is dispute pending. Since suit was already disposed and ended in a decree, therefore, it cannot be said there is a preexisting dispute on the ground application was filed for setting aside the decree which was filed beyond time prescribed. Therefore, petition deserves to be admitted as there is default committed by the Corporate Debtor. Petition admitted - moratorium declared. - CP (IB) No. 501/9/HDB/2019 - - - Dated:- 4-11-2019 - Ratakonda Murali, Member (J) And Narender Kumar Bhola, Member (T) For the Appellant : B.S. Jayanth Mishra and Shahbaaz, Advocates For the Respondents : Shaik Gouse and Mahadev Tirunagari, PCS ORDER Narender Kumar Bhola, Member (T) 1. Under consideration before us is the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Operational Creditor were acknowledged by the Corporate Debtor. It is alleged by the Operational Creditor that the Corporate Debtor was irregular in effecting payments towards the said invoices. Out of goods worth ₹ 21,12,790/- supplied, the Operational Creditor received only ₹ 4,00,000/-. (6) The Operational Creditor states that as per the understanding between the parties, the amount under the invoices raised, ought to cleared by the Corporate Debtor within 30 days of receipt of invoice, failing which interest @ 18% per annum would be charged on the unpaid amount till the date of payment. (7) The Operational Creditor initiated a civil suit against the Corporate Debtor vide O.S. No. 149/2013 before IIIrd Additional S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of set-aside and re-open petition before IIIrd Addl. Senior Civil Judge, Mangalore. 5. Heard the Counsels for Operational Creditor and Corporate Debtor. It is the case of Operational Creditor that claim against the Corporate Debtor had crystallized with the issue of decree dated 01.08.2016 by the court of IIIrd Additional Senior Civil Judge, Mangaluru whereby the Corporate Debtor has been directed to pay an amount of ₹ 20,27,799/- along with interest @ 12% from 03.10.2013 till date of realization. The Counsel submits that the said decree has become absolute since the time limit to file any appeal against the said order is already over and the same became time barred, cannot constitute as a dispute so as to impede the insolvency r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy proceedings initiated and after the expiry of limitation period, the same does not constitute a dispute and impediment to the initiation of CIRP. 7. Counsel for Corporate Debtor on the other hand, has maintained that the present petition filed by Operational Creditor is not maintainable in view of the petition filed by the Corporate Debtor. According to him, the same tantamount to existence of dispute as per definition of dispute under Section 5 (6) of IBC. Therefore, he pleads that the petition may be rejected. 8. The contention of the Counsel for Corporate Debtor that Civil Court at Mangaluru already seized of the matter. The Petitions are pending before the Civil Court Mangaluru. Thus, the contention of Learned Counsel that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2013 till date of realization. It is also brought on record that the Corporate Debtor has not preferred any appeal against the said Court till the initiation of proceedings under IBC by the Operational Creditor. It is well established, in view of lapse of the statutory time limitation to file appeal/ petition against the said order of IIIrd Additional Senior Civil Judge, the decree passed by the said court has reached finality. It is a fit case which comes within the four corners of the judgment of Hon'ble Supreme Court in the matter of K. Kishan vs. M/s. Vijay Nirman Company Pvt. Ltd. Accordingly, we hold that in the present case, there is no dispute pending with regard to the claim of the Operational Creditor against the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal for the period 1st July 2019 to 31st December, 2019 in compliance with Section 16(3)(a) of the Code in order to avoid delay. Accordingly, this Tribunal appoints Mr. Rajesh Chhaparia having registration number IBBI/ IPA-001/ IP-P00474/2017-2018/10817, Mob No. 9652184801 e-mail id: [email protected] as Interim Resolution Professional. The aforesaid interim resolution professional has no disciplinary proceedings pending against him. He shall file his written communication and all relevant paper immediately before Registrar of this Tribunal but not later than two days. 12. Hence, the Adjudicating Authority admits this Petition under Section 9 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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