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TMI Blog2020 (12) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... lusory, the adjudicating authority has to reject the application. The applicant has attached an affidavit in compliance of section 9(3)(b), also, it has attached the copy of Bank statements in compliance of the requirement of Section 9(3)(c) of the IBC 2016 - The registered office of respondent is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - The present application is within the prescribed limitation period. Thus, the present application is complete and the Operational Creditor is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application is admitted. Petition admitted - moratorium declared. - Company Petition No. IB-1340/ND/2018 - - - Dated:- 8-9-2020 - Dr. Deepti Mukesh, Member (J) And Hemant Kumar Sarangi, Member (T) For the Appellant : K. Datta, Rahul Malhotra, Manas Tripathi, Advocates For the Respondent : P. Nagesh, Nakul Jain and Shivam Wadhwa, Advocates ORDER Hemant Kumar Sarangi, Member (T) The present application is filed under Section 9 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k, Gurgaon, to the tune of ₹ 40,00,000/-, c. Cheque bearing No. 000460, dated 28.02.2018, drawn on M/s. Kotak Mahindra Bank, Gurgaon, to the tune of ₹ 45,00,000/-, d. Cheque bearing No. 000461, dated 20.03.2018, drawn on M/s. Kotak Mahindra Bank, Gurgaon, to the tune of ₹ 54,00,000/-, However, the PDC's as issued by the Corporate Debtor started dishonouring on account of the reason 'Funds Insufficient'. The copies of the aforementioned cheques along with the bank return memos of the cheques are annexed along with the application. 7. As per the submissions of the Operational Creditor, the Corporate Debtor even issued C-Forms in respect of some of the invoices in terms of which goods were supplied between August, 2015 and January, 2016, which is an admission on part of the Corporate Debtor as to the receipt of the material as well as the liability outstanding from the Corporate Debtor, payable to the Operational Creditor. The Operational Creditor, further states that, the date of default in respect of the each above mentioned invoice is 120 days pursuant to the issuance of the said invoice. 8. In spite of various requests made and rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor has caused an appearance in the matter and has filed its reply. In its reply to the present section 9 application, the Corporate Debtor states that, the default at the part of the Operational Creditor occurred from the very first order which was placed by the Corporate Debtor for BHEL-OP Jindal Project, wherein, Operational Creditor started delaying deliveries of their components even when there was no payment due from the Corporate Debtor in March, 2013 as is evinced from email dated 26.05.2013, addressed to Operational Creditor. 14. The Corporate Debtor further states that, all the POs are based on the principle of 'time is of the essence of the agreement'. The Operational Creditor knows very well that the Corporate Debtor is also on a time bound deadline and is wholly dependent upon the Operational Creditor supplying products on time, failing which the Corporate Debtor would be subject to harsh penalties from its clients. It further states that, on account of delay in deliveries by the Operational Creditor, the switchboard deliveries of the Corporate Debtor to its client BHEL started getting delayed resulting in imposition of Liquidated Damages on the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hedule towards the balance amount .... Amit Airy (Director) . The Corporate Debtor has no right to file a reply to the present proceedings initiated under the I B Code, 2016, as this Hon'ble Authority has to adjudicate the issue upon considering the facts enumerated in the petition. The Corporate Debtor has categorically admitted the receipt and approval of goods as supplied and the invoices as raised by the Operational Creditor. 18. The Operational Creditor further states that, there are unequivocal and unambiguous admissions on behalf of the Corporate Debtor in respect of the operational debt due. The Corporate Debtor vide its email dated 18.07.2018 while replying to the demand notice dated 06.07.2018 of the Operational Creditor undisputedly agreed for paying the operational debt and requested for a meeting. However, nothing as such has happened till date despite repeated assurances. 19. It is pertinent to note that the Applicant has placed on record all the invoices, stating that the Respondent itself had acknowledged the said invoices and copies of ledger account. Once the debt is shown as due, it is for Respondent to prove that there are no outstanding dues to be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal has jurisdiction to entertain and try this application. 24. The present application is within the prescribed limitation period. 25. In view of above, we are satisfied that the present application is complete and the Operational Creditor is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application is admitted. 26. The Applicant has not proposed the name of any Interim Resolution Professional. In view of the same, this Bench appoints Mr. Mansij Arya, having registration No. IBBI/IPA-002/IP-N00907/2019-2020/12939, email address is [email protected], as the IRP of the Respondent. The IRP is directed to take all such steps as are required under the statute, more specifically in terms of Sections 15, 17, 18, 20 and 21 of the Code. 27. We direct the Operational Creditor to deposit a sum of ₹ 2 lacs with the Interim Resolution Professional to meet out the expenses to perform the functions assigned to him in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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