9911796707
TMI Blog2019 (9) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... l creditor is ' 68,77,460/- (excluding interest @ 24% claimed by the Operational Creditor) and despite service of the No Interim Resolution Professional has been proposed by the Petitioner. Due opportunity is granted in the course of hearing to the respondent-corporate debtor to rebut the claim of the petitioner - In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, we 'Admit' the petition for initiation of the CIRP process against the Corporate Debtor M/s. Mars Hospitality and Retail Pvt. Ltd. and pronounce moratorium by appointment of an Interim Resolution Professional. Application admitted - moratorium declared. - CP (IB) No. 354/Chd/Chd/2018 - - - Dated:- 3-9-2019 - M.K. Shrawat, Member (J) and Pradeep R. Sethi, Member (T) For the Appellant : Vaibhav Sharma, Advocate For the Respondents : Amit Kaith, Advocate JUDGMENT M.K. SHRAWAT, MEMBER (J) 1. This petition has been filed by Pret Study By Janak Fashions Pvt. Ltd. (Operational Creditor), a company incorporated under the Companies Act, 1956 under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short to be referred hereinafter as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 for ' 38 lacs issued on behalf of Mars Enterprises. Debtor which had been misused by the respondent-Corporate Debtor. It is also submitted that the petitioner-Operational Creditor filed a criminal complaint against the respondent-Corporate Debtor vide Reference No. PW201806774 dated 01.05.2018 for unlawful possession of the products/stock owned by the petitioner-Operational Creditor. The present case pertains to the default committed by the respondent-corporate debtor in respect of purchase of products/stock vide Invoice No. SAL7071600492 dated 10.02.2012 which is for sum of ' 2,01,75,639/-. 4. The petitioner-operational creditor issued a demand notice dated 09.06.2018 in Form-3 as prescribed in Rule 5 (1)(a) of the Rules giving all the required particulars of the transactions along with copy of the sale invoices, statement of account/ledger of the Corporate Debtor, copy of 3 cheques and copy of 3 returning memos against dishonoured cheques. The Demand Notice is at Annexure P-10. The demand notice was sent by DTDC Courier vide receipt dated 09.06.2018 and the same is stated to have been delivered to the respondent-corporate debtor on 11.06.2018 as per the trackin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner w.e.f. 01.01.2018. The petitioner is liable to pay the use and occupation charges of the premises as per the supplementary/modified agreement dated 22.12.2017 as well as other Government dues which come to ' 54 lacs upto October, 2018. Copy of the lease deed is annexed as Annexure R-2. A counter allegation was that the Petitioner was liable to pay the damages for the breach of the contract because the Petitioner had stopped the business during the lock in period without any notice of two months as agreed in the agreement. Allegedly, the respondent were allegedly claimed to be due towards the petitioner, however strongly contested by the Petitioner, stated to be as under:- i. Use and occupation charges of the premises of Chandigarh store from 01.01.2018 to 31.10.2018 amounting to ' 54 lacs along with interest at the rate of ' 9% per month. ii. Salary and perks of the staff of the Chandigarh store, which were to be paid by the petitioner but paid by respondent amounting at ₹ 4 lacs. Copies of the vouchers of payment of salary are files as Annexure R-4 (colly). iii. The share of the respondent towards sale collection for the month of February, Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-corporate debtor available on the master data. Copy of the e-mail is at page 1426 of the paper book. The copy of the e-mail has been filed as Annexure P-12 of the petition discussed above in detail, the reply filed by the Authorized Representative of the creditor dated 20.05.2018. 11. The provisions of Section 9(5)(i) of the Code are as follows:- (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order-- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,-- (a) the application made under sub-section (2) is complete; (b) there is no payment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under subsection (4), if any. 12. We have gone through the contents of the application filed on Form No. 5 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsupported by evidence do not ascertain the existence of dispute. 16. To examine the events took place during course of business (sic) of true dispute which is not hypothetical or illusory should be made a basis for rejection of petition under Section 9. 17. During the course of hearing on 04.12.2018, an observation was made by this Bench that the learned counsel for the petitioner had contended that the goods passed to the respondent on raising of the invoices and that was duly on account of the corporate debtor, thus unequivocally demonstrating the business transaction which was clearly recorded in the books of account maintained by the petitioner. Admittedly reflected in the accounts the outstanding amount on account of cheque issued but bounced. 18. This noting is referred for the reason that due opportunity is granted in the course of hearing to the respondent-corporate debtor to rebut the claim of the petitioner. 19. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, we 'Admit' the petition for initiation of the CIRP process against the Corporate Debtor M/s. Mars Hospitality and Retail Pvt. Ltd. and pronounce morator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rim resolution professional; b) xxxxx Sub-section (4) of Section 16 says that the Board shall, within ten days of the receipt of a reference from the Adjudicating Authority under sub-section (3), recommend the name of an insolvency professional to the Adjudicating Authority against whom no disciplinary proceedings are pending. Approved for NCLT, Chandigarh Bench for appointment as IRP or Liquidator. The panel is valid for six months from 01.07.2019 to 31.12.2019. We select Mr. Madan Gopal Jindal, Registration No.IBBI/IPA-002/IP-N00137/2017-2018/10352, email id: [email protected] Mobile No.9814170354, appearing at Serial No. 51 of the panel to be appointed as 'Interim Resolution Professional'. 24. The Law Research Associate of this Tribunal has checked the credentials of the said IRP and there is nothing adverse against him. 25. In view of the above, the following directions are issued in respect of the appointment of the Interim Resolution Professional:- i) Appoint Mr. Madan Gopal Jindal, registered insolvency professional bearing Registration No. Registration No.IBBI/IPA-002/IP-N00137/2017-2018/10352, email id: [email protected], Mobile No.9814170354. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
