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TMI Blog2021 (8) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered office at Flat No. 2B, 2nd Floor, 36A, Pratapaditya Road, Kolkata-700026, West Bengal (hereinafter referred as the Corporate Debtor). 3. The Operational Creditor herein has submitted in the application that the Corporate Debtor had hired the Operational Creditor to supply the coal at the premises of the Corporate Debtor. The Operational Creditor had raised invoices against the goods supplied to the Corporate Debtor and as per the invoices raised the Corporate Debtor had cleared some invoices amount but there are several invoices due and yet to be cleared till date. 4. It is submitted that due to the non-payment of the invoices, the Operational Creditor had sent the Demand Notice dated 9th August, 2019 to the registered office of the Corporate Debtor through speed post and the same was delivered to their address on 14th August, 2019. It is submitted that the Corporate Debtor has neither replied nor raised any disputes regarding the debt amount claimed by the Operational Creditor and due to the non-payment, the Operational Creditor has filed the present application under section 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor failed to pay the outstanding amount to the Operational Creditor, and the outstanding has accumulated to a huge amount. The Operational Creditor further submits in the application that S.P. Paper Board Mills (1990) being a unit of M/s. Madhushree Industries Private Limited, all the invoices raised and books of accounts prepared are in the name of S.P. Paper Board Mills (1990). The Operational Creditor further submits that the dates of payment due and the dates of default thereof are mentioned against each of the invoices listed in 'Annexure-C'. 7. An affidavit of the sole proprietor of the Operational Creditor Mr. Anup Poddar has also been filed in support of application, deposing the authenticity of its averments. 8. The Operational Creditor also placed on record copies of the following documents for perusal of this Adjudicating Authority:- i. Copy of master data of Corporate Debtor downloaded from MCA Website is annexed here and marked as "Annexure-H". ii. The Demand Notice dated 09.08.2019 sent by Operational Creditor under section 8 of the Insolvency and Bankruptcy Code, 2016 to the registered office address of the Corporate Debtor through speed po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med thereunder, including the mandatory provisions of Sections 9(3)(b) and 9(3)(c). There is also no record of default with any information utility, which is a mandatory pre-condition. 12. It is submitted that the application is also otherwise barred by the principles of waiver, estoppel, acquiescence and/or principles analogous thereto. It is further submitted in the reply affidavit that applicant is wrongfully misusing the provisions of IBC as a mechanism for recovery of its alleged dues which is contrary to and in derogation of the provisions and objectives of IBC. The application has been filed with fraudulent and malicious intent and for purposes other than to resolve any purported insolvency of the Corporate Debtor. 13. It is stated that the business of the Corporate Debtor is suffering from heavy cash crunch due to weak response from the market in the business and the promoters or officers of the respondent are trying to revive the company with every possible circumstance. The respondent doesn't have any funds as of now to run the company or to pay to its creditors. The respondent herein has already shown its inability to pay the debt at this time due to the weak finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 9th August, 2019 (Annexure-I), which has duly been served upon the Corporate Debtor and an affidavit dated 11th September, 2019 having been filed alongwith the application deposing that no reply to the said notice under section 8 of the Code has been received by the Operational Creditor within the stipulated period from the Corporate Debtor. The date of default has been mentioned by the Operational Creditor as 7th March, 2019 because the Corporate Debtor has not paid the outstanding amount after adjusting part payment since that date. The Bank Statement (Annexure-G) has also been annexed to that effect. Since, the Operational Creditor has filed copies of the invoices alongwith Ledger of the Corporate Debtor, whereby the Corporate Debtor has confirmed the books of account from time to time. The Operational Creditor has been able to make out a case for initiation of CIRP in respect of the Corporate Debtor. The plea of the Corporate Debtor that it had suffered heavy losses or is having cash crunch due to market response in the business or that it is trying to resolve the financial problems is in a way admission on the part of the Corporate Debtor. The Corporate Debtor had never rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner or lessor where such property is occupied by or in the possession of the corporate debtor. v) The supply essential goods or services rendered to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during the moratorium period. vi) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii) 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 the 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. ix) Mr. Jitendra Lohia, registered with Insolvency and Bankruptcy Board of India, having Registration No. IBBI/IPA-001/P00170/2017-2018/10339, E-mail ID: [email protected], and holding AFA under Regulation 7-A of ..... 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