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TMI Blog2021 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. Solas Fire Safety Equipment Pvt. Ltd. ('Respondent/Corporate Debtor') on the ground that it has committed default for an amount of ₹ 4,35,487.50/- (Rupees Four Lakh Thirty Five Thousand Four Hundred Eighty Seven and Fifty Paisa Only) as on 09.11.2016. 2. Brief facts of this case, as mentioned in the Company Petition, which are relevant to the issue in question, are as follows: (1) M/s. Aster Technologies Pvt. Ltd. (hereinafter referred to as 'Petitioner/Operational Creditor') is incorporated under Companies Act, 1956 having CIN No. U74899DL1998PTC033500. The Company is engaged in the business of manufacturing, supplying and trading of Commercial food service Equipment, Refrigeration equipment etc. (2) M/s. Solas Fire Safety Equipment Pvt. Ltd. (hereinafter referred to as 'Respondent/Corporate Debtor') is a Private Company limited by Shares incorporated on 18.07.2002 bearing CIN: U29299KA2002PTC030780. Its Authorized Capital is ₹ 1,50,00,000/- and Paid-up share Capital is ₹ 1,50,00,000/-. (3) It is stated that the Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 916 of 2020, which was disposed of by an order dated 05.01.2021 with the following directions: For the above reasons, we set aside the Impugned Order. We remand back the matter to the Adjudicating Authority. CP(IB) No. 184/BB/2020 is restored to the file of Adjudicating Authority (NCLT Bengaluru Bench). The Adjudicating Authority is requested to consider the Application as per provisions of IBC and decide the same as per law, after hearing the parties. The Appellant and Respondent are directed to appear before the Adjudicating Authority on 27th January 2021. The Appeal is disposed of accordingly. In pursuant to the above order, the case was listed for hearing on various dates viz., 29.01.2021, 05.02.2021 and on 11.03.2021. 4. The Respondent has filed its Statement of Objections on 05.02.2021 to the petition, by inter alia contending as follows: (1) The Operational Creditor was required to not only to supply fire safety materials but also undertake installation and commissioning of the materials at the designated site. However, the Operational Creditor failed to undertake the installation and commissioning work in a manner required of it. As a result of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IBBI/IPA-001/IP-P01914/2019-2020/12914, is suggested, as IRP, who has also filed written Communication in Form-2 dated 14.02.2020, by inter-alia declaring that he is a qualified Insolvency Professional; there are no disciplinary proceedings pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI. Therefore, he urged the Adjudicating Authority, to initiate CIRP as prayed for. 7. Shri Ashok G.V., Learned Counsel for the Respondent, while reiterating averments made in the Reply as briefly stated supra, has also filed written submission dated 26.02.2021 by inter alia stating as follows: (1) The Petitioner, instead of producing certification has relied on the alleged letter dated 13.03.2018. On perusal of the said letter, the same was written in response to the letter of the Petitioner dated 24.02.2018 which the Petitioner deliberately suppressed while filing the above application. As per the letter dated 13.03.2018 when the work of the Petitioner as well as the invoice based on which the application was filed was examined and reviewed there were serious defects and shortcoming in the Petitioner work as a result of which the Respondent wrote th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ending, and promised to clear the dues within 30 days period. When the Respondent failed to honour their promise, the Petitioner has issued demand notice dated 4.10.2019 under the provisions of Code, which was duly acknowledged by the Respondent. The Respondent, vide their Reply dated 13.12.2019 by inter alia stating though goods as ordered as per invoice were supplied but failed to install them in a proper and required manner and in time bound manner. As stated supra, work order is dated 27.05.2016 and after two years, the Respondent has addressed a letter dated 26th May, 2018, which is enclosed to their Reply as Annexure R.2, where in by expressing unsatisfactory work, has finally expressed to resolve the issue and expressed to pay 50% of due and to close the matter. Having accepted the dues of Petitioner as early as on 13.03.2018, the Respondent is estopped from changing its stand and raise untenable grounds of unsatisfactory work, delay and laches etc. Therefore, it is to be held that there is no bona fide pre-existing dispute as alleged and it is untenable. 9. It is also relevant to point out here that the Adjudicating Authority in the earlier order dated 09th September 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely Solas Fire Safety Equipment Private Limited to carry out the CIRP as mentioned under the Insolvency and Bankruptcy Code, 2016 and various rules issued by IBBI from time to time; 2) The following moratorium is declared prohibiting all of the following, namely: a) the institution of suits or continuation of pending suits or proceedings against the Respondent/Corporate Debtor including execution of any judgment, decree or order in any court of law, Tribunal, Arbitration panel or other authority; b) transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; c) 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; d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor; e) The supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspen ..... 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