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TMI Blog2021 (8) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... l Creditor. There is no dispute in relation to the supply of goods by the Operational Creditor to the Corporate Debtor and also those defences raised by the Corporate Debtor are afterthought and also all these defences have been raised by the Corporate Debtor very much after the issuance of the Demand Notice which cannot be termed as a dispute as envisaged under Section 9 of IBC, 2016. Whether the Operational Creditor has proved the 'Operational Debt' and the 'default' committed on the part of the Corporate Debtor? - HELD THAT:- It is seen that all the invoices raised by the Operational Creditor squarely falls for the period from 2017 to 2018 and the present application was filed before this Tribunal on 21.02.2020 and also the services provided by the Operational Creditor and the failure to make payment by the Corporate Debtor will fall within the meaning of Operational Debt , as stated under Section 5(20) of the IBC, 2016. The application is admitted - moratorium declared. - IBA/304/2020 - - - Dated:- 9-8-2021 - R. Sucharitha, Member (J) And Anil Kumar B., Member (T) For the Appellant : Jayesh B. Dolia, Advocate For the Respondents : R. Um ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggregates to a value of ₹ 18,13,70,322.66/-, for which, the Corporate Debtor has paid a sum of ₹ 10,37,46,928/-. Further, it was submitted that despite repeated requests made by the Operational Creditor, the Corporate Debtor has failed to pay the balance amount which was due and payable to the Operational Creditor. 6. Pursuant thereto, it is seen the Operational Creditor has raised Demand Notice in Form III as mandated under Section 8 of the IBC, 2016 on 27.12.2019, which was received by the Corporate Debtor on 28.12.2019, from which, it is seen that the Corporate Debtor has replied on 06.01.2020. The reply of the Corporate Debtor to the demand notice is extracted hereunder: Further reference to the above, due to discrepancy in the supply not in line with us, we are requested several times to come in person to solve it and in last 10 days via telephonic discussion and send messages also. As on today no one from your company is visited to meet us to solve the issues. There are several billing related issues to be sort out and also several GST related issues to be sort out . 7. The Operational Creditor has also filed an affidavit as mandated under Section 9 (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The Operational Creditor has filed rejoinder and the Operational Creditor denies all the allegations made by the Corporate Debtor in the counter and stated that it is false on the part of the Corporate Debtor to state that there is a dispute between the parties since in the reply notice dated 06.01.2020 issued by the Corporate Debtor, no details with respect to the dispute were mentioned. Also, it was submitted that the Corporate Debtor has failed to provide any documents to prove that the dispute exists between the parties prior to the issuance of the Demand Notice dated 27.12.2019. Further, it was submitted that the alleged debit notes dated 30.04.2019 were issued by the Corporate Debtor only after the Payment Notice was issued by the Operational Creditor on 20.02.2019 and that the Corporate Debtor never had any issues with the quality of the goods supplied by the Operational Creditor. It was also submitted that the Operational Creditor has duly paid the GST Returns in respect of the invoices as submitted by the Operational Creditor and proof of the same was also annexed with the Typed Set filed along with the rejoinder. Under such circumstances, it was prayed by the Learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice which cannot be termed as a dispute as envisaged under Section 9 of IBC, 2016. 14. As regards issue No. (ii) is concerned, it is seen that all the invoices raised by the Operational Creditor squarely falls for the period from 2017 to 2018 and the present application was filed before this Tribunal on 21.02.2020 and also the services provided by the Operational Creditor and the failure to make payment by the Corporate Debtor will fall within the meaning of Operational Debt , as stated under Section 5(20) of the IBC, 2016. 15. 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. The Operational Creditor has proposed the name Mr. K. Ganesan, Reg. No. IBBI/IPA-002/IP-N00927/2019-2020/12975 (Email: [email protected]), and a written communication in the format prescribed under Form 2 of the Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rules, 2016 has been filed by the proposed IRP who is appointed as the IRP to take forward the process of Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be terminated or suspended or interrupted during moratorium period. (2A) Where the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or services critical to protect and preserve the value of the Corporate Debtor and mange the operations of such Corporate Debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the 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. 18. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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