9911796707
TMI Blog2019 (11) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... this petition is filed under Section 9 of Insolvency & Bankruptcy Code, 2016, R/w Rule 6 of Insolvency & Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, seeking admission of the Petition, initiation of Corporate Insolvency Resolution Process, granting moratorium and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon. 2. The averments germane to the petition in brief are:- (1) The Operational Creditor is a registered partnership firm which is engaged in the business of manufacture and export of steamed fish meal, fish oil etc. (2) The Corporate Debtor is a Company registered under the Companies Act, 1956 and is primarily engaged in the business of fishing, operation of fish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est @ 12% p.a. from the date of order till realization. However, the Corporate Debtor failed to make good the payment even after the decree was passed. (8) When the Corporate Debtor despite several reminders failed to make good the outstanding amount, the Operational Creditor issued demand notice in form-3 on 03.07.2018. The Corporate Debtor failed to reply to the Demand notice. Hence, this petition. 3. Counter is filed by Corporate Debtor refuting the averments made by the Operational Creditor and contested as under:- (1) It is the case of Corporate Debtor that it could not contest the civil suit bearing OS No. 149/2013 filed before IIIrd Addl. Senior Civil Judge, Mangaluru as summons were not served on the Corporate Debtor and the Op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of Hon'ble Supreme Court in the above matter, para 19 thereof reads as under:- "We may hasten to add that there may be cases where a Section 34 petition challenging an Arbitral Award may clearly and unequivocally be barred by limitation, in that it can be demonstrated to the Court that the period of 90 days plus the discretionary period of 30 days has clearly expired, after which either no petition under Section 34 has been filed or a belated petition under Section 34 has been filed, It is only in such clear cases that the insolvency process may then be put into operation". 6. Accordingly, the Counsel for Operational Creditor submits that keeping in view the date of decree i.e. 01.08.2016, the limitation to file any appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Deem Roll-Tech Limited against M/s. R.L. Steel & Energy Limited, New Delhi dated 31.03.2017 (ii) Hon'ble NCLT, Bengaluru Bench order passed in CP (IB) No. 65/BB/2019 in the matter of Mr. P. Arunane, Bangalore vs. One Bill Software Indian Private Limited, Bangalore dated 28.08.2019. (iii) Hon'ble NCLT Principal Bench order passed in CP No. (IB) 1492(PB)/2018 dated 03.09.2019 in the matter of Smt. Tejinder Kaur vs. Bhawani Castings Private Limited. (iv) This Bench order dated 18.01.2018 in CP (IB) No. 211/09/HDB/2017 in the matter of M/s. IAE Electricals Private Limited vs. Aster Private Limited. (v) This Bench order dated 25.09.2019 passed in CP (IB) No. 465/9/HDB/2018 in the matter of Sanvei Overseas Private Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the decisions cited are different to the facts of the present case. Already suit was decreed. There was no pendency of suit when Operational Creditor filed petition under Section 9 against the Corporate Debtor. Maybe Corporate Debtor filed Petition for setting aside the decree. It is filed beyond limitation. Mere filing of Application / Petition for setting aside the decree under Order 9 Rule 13 of CPC against the Corporate Debtor does not amount to dispute pending. If suit is pending, only then we can come to a conclusion 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority; Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under Securitization and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002 (54 of 2002); the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate Debtor; (2) That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (3) That the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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