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TMI Blog2021 (4) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... al of earlier CP filed by operational creditor is not a bar for filing another CP in respect of the same debt, if the petitioner is able to prove the subsistence of a legally enforceable debt and if the subsequent CP is filed within the period of limitation. The application is complete in all aspects and also no objections are being raised to the completeness of the application filed under Section 9(2) of the Code - Petition admitted - moratorium declared. - CP (IB) No. 30/Chd/Hry/2019 - - - Dated:- 26-3-2021 - Ajay Kumar Vatsavayi, Member (J) And Raghu Nayyar, Member (T) For the Appellant : Abhilaksh Grover, Advocate For the Respondents : Sanjeev Ghai, Advocate JUDGMENT Ajay Kumar Vatsavayi, Member (J) 1. This petition is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as Code) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as Rules) by M/s. Pawan Cargo Forwards Pvt. Ltd. (Operational Creditor) for initiating the Corporate Insolvency Resolution Process (CIRP) in the case of M/s. Bestways Transport (India) Ltd. (Corporate Debtor). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the total amount of ₹ 4,02,95,390/- together with the notice fee of ₹ 15,000/- within 7 days of the receipt of this notice. 7. It is stated that the corporate debtor after the receipt of the above notices called the Counsel for the operational creditor and sought some time to make payments and thereafter, sent an email dated 18.11.2015 wherein the corporate debtor has admitted the said liability and to pay the interest on the outstanding due. Copy of the email dated 18.11.2015 is annexed as Annexure P-8 of the petition. 8. The petition is signed by Mr. Sanjay Agarwal, Managing Director of the operational creditor, duly authorised vide Board Resolution dated 18.09.2015 (Annexure P-1 of the petition). 9. In Part III of Form 5, the operational creditor has not proposed the name of IRP. 10. Notice of the petition was directed to be issued to the corporate debtor on 24.01.2019 as to why this petition be not admitted. 11. The corporate debtor in its reply (Diary No. 7225 dated 17.12.2019) has submitted that the petition is liable to be dismissed as the email dated 18.11.2015 being projected as an admission of liability has not been sent by the then Managing D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties so as to charge interest at this exorbitant rate of 24% per annum by the petitioner-operational creditor. 15. Heard Mr. Abhilaksh Grover, the learned counsel for the petitioner-operational creditor and Mr. Sanjeev Ghai, the learned counsel for the respondent-corporate debtor and perused the pleadings on record. 16. Mr. Abhilaksh Grover, the learned counsel for the petitioner-operational creditor while reiterating the averments in petition placed heavy reliance on Annexure P-8 e-mail dated 18.11.2015 for the purpose of admission of debt by the corporate debtor and for the purpose of extension of the period of limitation of the CP. The learned counsel for the petitioner further submits that the corporate debtor having failed to give any reply to the Annexure P-10 demand notice dated 01.03.2018 cannot be permitted to deny the debt or default. 17. The learned counsel for the petitioner placed reliance on the following decision in support of his submissions:- i. Labdhi Enterprises vs. Baramati Agro Pvt. Limited, MANU/NL/0172/2017 18. On the other hand, Mr. Sanjeev Ghai, the learned counsel for the respondent-corporate debtor submits that the Annexure P-8 e-mail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. The facts of the present case are being examined with reference to the judgment of the Hon'ble Supreme Court. 21. In view of the above referred decision in Mobilox Innovations (Supra), it is to be seen whether the petitioner proved the debt and default in terms of the provisions of the Code and Regulations made thereunder. The respondent-corporate debtor has not disputed the relationship of the operational creditor and the corporate debtor between the petitioner and the respondent. It is also not in dispute that the respondent-corporate debtor has not given any reply to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section (4), if any. 25. In view of the above provisions, it could be seen that the application is complete in all aspects and also no objections are being raised to the completeness of the application filed under Section 9(2) of the Code. As discussed above, the operational debt remains unpaid and the operational creditor has attached its bank statements in support of such assertion marked as Annexure P-12 (Colly) of this application. The demand notice accompanied with copy of invoices, dated 01.03.2018 was duly served to the corporate debtor on 13.03.2018 as per the tracking report showing it as 'item delivered'. It is deposed on behalf of the operational creditor that the corporate debtor has not brought to the notice of the operational creditor existence of any dispute or pendency of suit or arbitration proceedings filed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. In the instant case also, the operational creditor has not proposed the name of any Resolution Professional to be appointed as Interim Resolution Professional. Section 16(3)(a) of the Code says that where the application for Corporate Insolvency Resolution Process is made by an operational creditor and- a) no proposal for an interim resolution professional is made, the Adjudicating Authority shall make a reference to the Board for the recommendation of an insolvency professional who may act as an interim resolution professional; b) x x x x x 31. 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 subsection (3), recommend the name of an insolvency professional to the Adjudicating Authority against whom no disciplinary proceedings are pending. 32. In this regard a letter bearing File No. 25/02/2021-NCLT dated 01.01.2021 has been received from the National Company Law Tribunal, New Delhi, forwarding therewith a copy of letter No. IP-12011/1/2020-IBBI/978/1290 dated 31.12.2020 along with the guidelines and the panel of resolution professionals approved for NCLT, Chandigarh Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor; v.) It is hereby directed that the Corporate Debtor, its Directors, personnel and the persons associated with the management shall extend all cooperation to the Interim Resolution Professional in managing the affairs of the Corporate Debtor as a going concern and extend all cooperation in accessing books and records as well as assets of the Corporate Debtor; vi.) The Interim Resolution Professional shall after collation of all the claims received against the Corporate Debtor and the determination of the operational position of the Corporate Debtor, constitute a Committee of Creditors and shall file a report, certifying constitution of the Committee to this Tribunal on or before the expiry of thirty days from the date of his appointment, and shall convene first meeting of the Committee within seven days of filing the report of constitution of the Committee; and vii.) The Interim Resolution Professional is directed to send regular progress report to this Tribunal every fortnight. A copy of this order be communicated to both the parties. The learned counsel for the petitioner shall deliver copy of this order to the Interim Resolution Professional forthwith. The R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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