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TMI Blog2021 (6) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... n 24.10.2019, the Corporate Debtor for the first time has sought to refute the dues which is payable to the Operational Creditor - from the documents placed in support of the claim being made in Part IV of the Application, it is seen that the Corporate Debtor is liable to pay the said sum of ₹ 80 Lakh to the Operational Creditor as per the Memorandum of Understanding dated 22.08.2019 and has committed a default in payment of the same. The Operational Creditor has proved the existence of an 'Operational debt' and the Corporate Debtor has committed 'default' in the repayment of the said 'Operational debt' to the Operational Creditor and in the said circumstances we are constrained to initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor - Application admitted - moratorium declared. - IBA/155/2020 - - - Dated:- 31-5-2021 - R. Varadharajan, Member (J) And Anil Kumar B., Member (T) For the Appellant : Suresh Kumar, Advocate For the Respondents : S. Diwakar, Advocate ORDER Anil Kumar B., Member (T) 1. This Application has been filed under Section 9 of the Insolvency Bankruptcy Code, 2016 ( her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed for settling the dues as per the terms and conditions laid down in the Agreement dated 22.08.2019. As per the said agreement, it was decided that the Operational Creditor would cease to carry out Operations and Maintenance and Management Services to the Corporate Debtor and the Corporate Debtor would make a final settlement of outstanding operational debt of ₹ 1.30 Crore to the Operational Creditor. Further, it was submitted that the Corporate Debtor has confirmed that the Operational Creditor has handed over maintenance of the effluent treatment plant in full and there was no obligation on the Operational Creditor under the contract of Operations and Maintenance and Management Services. It was submitted that the Corporate Debtor has agreed to release the Final settlement of ₹ 1.30 Crore as per the Schedule mentioned below; a. ₹ 50 Lakh paid as two payments of ₹ 25 Lakh immediately. b. ₹ 40 Lakh to be paid on 05.10.2019 c. ₹ 40 Lakh to be paid on 05.11.2019 6. The Learned Counsel for the Operational Creditor submitted that the Corporate Debtor has paid the first payment of ₹ 50 Lakh as agreed between the parties, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate Debtor is illiterate and the Operational Creditor had taken advantage of the same and cheated and misrepresented to him regarding various issues, including siphoning of huge amount from the Corporate Debtor's Company. 8. The Learned Counsel for the Corporate Debtor submitted that in the reply to the Demand Notice letter dated 18.11.2019, the Corporate Debtor has categorically stated the misfeasance and the lackadaisical approach of the Operational Creditor in handling the Corporate Debtor's machinery and that the Corporate Debtor has to incur heavy expenditure towards repairing and replacing various machinery and that in this regard, the Corporate Debtor has spent a sum to the tune of ₹ 7 Crore. Further, it was submitted that as on date, the Corporate Debtor has paid a sum of ₹ 22.79 Crore on various bills being raised by the Operational Creditor and that only the disputed bills alone is pending to be paid. Thus, it was submitted by the Learned Counsel for the Corporate Debtor that there is no outstanding amount which is lawfully due and payable by the Corporate Debtor to the Operational Creditor and under such circumstances has sought for the dismissal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the receipt of such notice or invoice in relation to such dispute; (b) the payment of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation. - For the purposes of this section, a demand notice means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred. (emphasis supplied) 12. A perusal of Section 8(2)(a) of IBC, 2016 manifests the fact that upon the receipt of the Demand Notice, the Corporate Debtor is required to bring to the notice of the Operational Creditor, the existence of any dispute before the receipt of the Demand Notice. In the present case, the Demand Notice was sent to the Corporate Debtor on 24.10.2019 and the same was received by the Corporate Debtor on 26.10.2019 and in their reply letter dated 18.11.2019, the Corporate Debtor has not brought to the notice of the Operational Creditor as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niary Jurisdiction' to entertain this Petition, as filed by the Operational Creditor. Under the said circumstances, this Tribunal is left with no other option than to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor. 18. Thus, taking into consideration the facts and circumstances of the case as well as the position of Law, we are of the view that the Petition, as filed by the Operational Creditor, is required to be admitted under Section 9(5) of the IBC, 2016. Since the Operational Creditor has not named the Insolvency Resolution Professional, this Tribunal based on the latest list furnished by Insolvency and Bankruptcy Board of India applicable for the period between January - June 2021 appoints Mr. Govindarajan M, with Registration No. IBBI/IPA-003/IP-N00293/2020-2021/13290 (email id:- [email protected]) as the Interim Resolution Professional subject to the condition that no disciplinary proceedings are pending against such an Interim Resolution Professional named and disclosures as required under IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 are made within a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of moratorium, except where such Corporate Debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified. (3) The provisions of sub-section (1) shall not apply to (a) such transactions, agreements or other arrangement as may be notified by the Central Government in consultation with any financial sector regulator or any other authority; (b) a surety in a contract of guarantee to a corporate debtor. 20. The duration of the period of moratorium shall be as provided in Section 14(4) of the Code and for ready reference reproduced as follows: (4) The order of moratorium shall have effect from the date of such order till the completion of the Corporate Insolvency Resolution Process: Provided that where at any time during the Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the Resolution Plan under sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or Liquidation Order, as the case may be. 21. The Operational Creditor is direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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