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TMI Blog2022 (1) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor. The Petition as filed by the Operational Creditor, is required to be admitted under Section 9(5) of the IBC, 2016 - Petition admitted - moratorium declared. - IBA/480/2020 - - - Dated:- 24-12-2021 - S. Ramathilagam, J. (Member (J)) And Anil Kumar B., Member (T) For the Appellant : Kedar Wagle, Advocate For the Respondents : V.S. Jayakumar, Advocate ORDER S. Ramathilagam, J. (Member (J)) 1. Under Adjudication is IBA/480/2020 that has been filed by Ingram Micro India Private Limited (hereinafter referred to as Operational Creditor') under Section 9 of the Insolvency Bankruptcy Code 2016 (in short, 'IBC, 2016') r/w Rule 6 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against Lookman Electroplast Industries Ltd. (hereinafter referred to as 'Corporate Debtor'). The prayer made is to admit the Application, to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, declare a moratorium and appoint Interim Resolution Professional (IRP). 2. Part I of the application, sets out the details of the Operational Creditor from which, it is evident that the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the reason of funds insufficient . Therefore, on 20.12.2019, the Operational Creditor caused Legal Notice under Sec. 138 of Negotiation of Instruments Act to the Corporate Debtor. Subsequently, on 23.12.2019 the Operational Creditor sent Demand Notice in Form-3 to the Corporate Debtor. 8. It was submitted that from 09.01.2021 to 31.05.2021, the Corporate Debtor made only ₹ 1,20,00,000/- towards the due amount after the above payment was made, the Operational Creditor claims ₹ 6,29,18,357.78/- as outstanding debt and the interest thereon at the rate of 24% per annum amounting to ₹ 1,34,97,138.40/- as on 31.05.2021 from the due dates of the invoices and cheque bounce charges amounting to ₹ 2,950.79/- all totalling ₹ 7,64,18,446.97/- as an outstanding due. 9. The Learned Counsel for the Corporate Debtor in the counter submitted that the Corporate Debtor issued 7 purchase orders worth ₹ 8,68,54,335.99/- to the Operational Creditor. It was further submitted that the Corporate Debtor is in the belief that the Operational Creditor had supplied all items mentioned in the purchase orders and assured to make all payments as per the purchase ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The issue raised by the Learned Counsel for the Corporate Debtor is that there is a dispute on the short supply of goods delivered by the Operational Creditor. It is seen from the e-mail communication dated 17.10.2020 filed in the typed set of documents filed by the Corporate Debtor, regarding the dispute of short supply was sent only after filing of this application. In Mobilox Innovations Pvt. Ltd. v. Kitusa Software (P) Limited case the Hon'ble Apex Court held that Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute (Section 8(2)(a)). What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing - i.e. it must exist before the receipt of the demand notice or invoice, as the case may be... Further, it is seen that in the e-mail communication dated 04.09.2020 from the above said typed set, the Corporate Debtor assured to make payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de within a period of one week from the date of this order. The IRP appointed shall take in this regard such other and further steps as are required under the Statute, more specifically in terms of Section 15, 17, 18of the Code and file his report within 20 days before this Bench. The powers of the Board of Directors of the Corporate Debtor shall stand superseded as a consequence of the initiation of the CIRP in relation to the Corporate Debtor in terms of the provisions of IBC, 2016. 19. As a consequence of the Application being admitted in terms of Section 9 (5) of the Code, the moratorium as envisaged under the provisions of Section 14(1) and as extracted hereunder shall follow in relation to the Corporate Debtor: a. The institution of suits or continuation of pending suits or proceedings against the respondent including the 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 respondent 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 res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. 22. The Operational Creditor is directed to pay a sum of ₹ 1,00,000/- (Rupees One Lakh Only) to the Interim Resolution Professional upon the Interim Resolution Professional filing the necessary declaration form as required under the provisions of the Code to meet out the expenses to perform the functions assigned to her in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 23. Based on the above terms, the Application stands Admitted in terms of Section 9(5) of IBC, 2016 and the moratorium shall come in to effect as of this date. A copy of the Order shall be communicated to the Operational Creditor as well as to the Corporate Debtor above named by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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