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TMI Blog2020 (1) TMI 1519X X X X Extracts X X X X X X X X Extracts X X X X ..... Insolvency Petition etc. apart from other powers as required to proceed with applications or cases etc. Hence it cannot be said to be bad in law. Notice dated 11.12.2017 issued by the applicant qualifies as a demand notice or not - HELD THAT:- The notice issued on 11.12.2017 by the applicant demanding the operational debt is supported by all the required documents like copy of sale contract, list of invoice and copy of invoices as contemplated and envisaged under the provisions of the Code. As per the provisions of the code, Section 8 read with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 either a demand notice in form 3 or a copy of invoice attached with a notice in form 4, is required to initiate an Insolvency Application and so the demand notice duly qualifies as a demand notice under the Code. Whether the copies of relevant accounts from the bank/financial institution maintaining accounts of the applicant confirming that no payment is received from the respondent is annexed to the application or not - HELD THAT:- There is a requirement of furnishing other information and documentary evidence involving particulars of opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Advocate Ms. Natasha Dhruman Shah for respondent. ORDER Ms. Manorama Kumari, J. 1. Mr. Pratik Deepak Shah, being authorised person on behalf of the operational creditor M/S. Lim Fa Pte Ltd. filed this Petition under Section 9 of The Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as the Code ] read with Rule 6 of The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as the Rules ]. 2. The applicant/operational creditor is a company incorporated under the laws of Singapore, having unique entity number (UEN) 199800226M and having registered office at Jalan Besar, Singapore carrying on the business of trading and supply of ball bearing, metal scrap, palm oil etc. 3. The respondent corporate debtor is a private limited company registered on 25.11.2013 having registration No. U51909GJ2013PTC077606 having its registered office at Bhavnagar, Gujarat state. Authorised share capital of the respondent company is ₹ 8,50,00,000/- and paid up share capital is ₹ 8,50,00,000/-. 4. The applicant/Petitioner has submitted that as per the sale contracted dated 01.03.2016 entered between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant as stated in the application towards which the opponent has defaulted in making payment. That, none of the documents referred to by the applicant evidence delivery of goods. That, email correspondence produced by the applicant are misconceived and intentionally placed with the present petition. Findings 10. Heard at length learned lawyers appearing for both the sides and perused the documents submitted by both the parties. 11. On perusal of the records it is found that, in the reply, in toto, the respondent has denied the contentions raised by the applicant. Even the respondent has denied having received the consignment of goods against which the invoices are raised by the applicant. 12. On perusal of the records it is found that the first objection raised by the corporate debtor is that the present petition is filed without proper authority. 13. On perusal of the record it is found that the applicant company has duly passed a resolution in meeting of the Board of Directors on 04.12.2017, which has already been produced in the proceedings at page No. 39 whereby Mr. Pratik D. Shah is authorised as authorised representative of the petitioner to file c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r operational debt is due and payable. Also the Hon'ble Supreme Court stated that only a procedural provision which is directory in nature as the Adjudicating Authority Rules read with the Code and not a condition precedent to triggering the insolvency process under the Code. 18. The fourth objection raised by the corporate debtor is that there has been no agreement between the applicant and respondent in relation to the rate of interest to be charged on account of delay. 19. In case if there is no agreement with respect to the interest in case of late payment, the provisions on the Interest Act, 1978 would apply. As per the Interest Act, 1978, interest can be claimed in any process of recovery of any debt or damages. Thus, the applicant is entitled to claim interest on the payment even in absence of any agreement between the applicant and the respondent, more so when there is nothing on record in writing showing that the applicant will not charge any interest for the payments delayed beyond due dates. Further, such statement itself is an admission on the part of the applicant that amount is due and payable to the petitioner but not the interest. 20. The respondent has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sposed of. 27. Thus, under the facts and circumstances and as discussed above, in the light of the Hon'ble Supreme Court Judgement and the provisions thereof as enshrined in Insolvency Bankruptcy Code, this adjudicating authority is of the considered view that operational debt is due and payable to the Applicant and it fulfilled the requirement of 1B Code as enshrined in the Code. That, Applicant is an Operational Creditor within the meaning of Section 5 sub-section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as there is/are occurrence of default on the part of the corporate debtor and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force. 28. From the above stated discussion and on the basis of material available on rec6rd, it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code. Section 13 of the Code enjoins upon the Adjudicating Authority to exercise .its discretion to pass an order to declare a mora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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