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TMI Blog2021 (10) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... d to quality of material supplied by the operational creditor. It can be seen that respondent has raised the same objection in its reply to Demand Notice dated 29.06.2018. However, the corporate debtor has raised the objections for the first time only after issuance of Demand Notice dated 21.06.2018 and has failed to show that if any dispute was raised prior to the issuance of Demand Notice. Thus, the dispute was raised for the first time only after service of Demand Notice, therefore it cannot be treated as pre-existing dispute. Hence, this issue is held in favour of the petitioner. Time Limitation - HELD THAT:- It can be seen that the invoices and lorry receipts Annexure 1(A)-1 to Annexure 1(A)-18 pertains to the years 2014 and 2015. The present application is filed on 13.07.2018. It can be seen from the Balance Confirmation letter dated 31.03.2016 issued by the corporate debtor, that the corporate debtor has acknowledged the debt amounting to 93,05,491/- towards operational creditor. Thus, the CP is well within the period of limitation. It has been shown that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d lorry receipts against the delivery of cotton yarns and bales are found attached as Annexure-I(A)-1 to Annexure-I(A)-13 and Annexure-I(A)-15 to Annexure-I(A)-18. It is further submitted that the corporate debtor has issued cheques for a sum of ₹ 87,52,568/- which were returned unpaid with the reason 'Funds Insufficient'. The copies of cheques and cheque return memos are found attached as Annexure-I(A)-21 to Annexure-I(A)-27. 4. It is further submitted that the corporate debtor has confirmed and acknowledged the debt as on 31.03.2016. The corporate debtor has also signed the confirmation of closing balance in ledger account from 04.04.2015 to 31.03.2016. Copy of confirmation letter dated 31.03.2016 issued by the corporate debtor and ledger account is attached as Annexures-1 and 2 respectively of Diary No. 6582 dated 25.11.2019. 5. It is stated that the respondent-corporate debtor has failed to discharge its obligation towards the applicant-operational creditor, in as much as it failed to make the payment due to the applicant-operational creditor. 6. A demand notice under Section 8 of the Code dated 21.06.2018 (Annexure-I(A)-20) is stated to be served upon the corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is whether the demand notice u/s. 8 of IBC, 2016 dated 21.06.2018 Annexure-1(A)-20 was properly served. The demand notice was sent to the registered address of the corporate debtor on 21.06.2018. It can be seen that the corporate debtor has replied to the Demand Notice on 29.06.2018 (Annexure-II(A)-24. Therefore, the question of non-delivery of Demand Notice does not arise at all. It can be seen that the operational creditor has replied to the response/reply vide notice dated 11.07.2018. In view of the same, it is held that demand notice has been duly served. 13. The next issue for consideration is whether the operational debt was disputed by the corporate debtor. The respondent-corporate debtor has filed reply and raised objections with regard to quality of material supplied by the operational creditor. It can be seen that respondent has raised the same objection in its reply to Demand Notice dated 29.06.2018. However, the corporate debtor has raised the objections for the first time only after issuance of Demand Notice dated 21.06.2018 and has failed to show that if any dispute was raised prior to the issuance of Demand Notice. Thus, the dispute was raised for the first time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lished the default in payment of the Operational Debt for the default amount being above ₹ 1,00,000/-, the petition is admitted in terms of Section 9 of the IBC and accordingly, moratorium is declared in terms of Section 14 of the Code. As a necessary consequence of the moratorium in terms of Section 14, the following prohibitions are imposed, which must be followed by all and sundry: "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) The recovery of any property by an owner or lessor, where such property is occupied by or in the possession of the corporate debtor. (e) It is fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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