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TMI Blog2022 (1) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence to show that there is a pre-existing dispute in the instant case - the nature of the Debt is an 'Operational Debt' as defined under Section 5(21) of the Definitions under the Code. There is a Default as defined under Section 3(12) of the Code on the part of the Corporate Debtor. The application made by the Operational Creditor is complete in all respects as required by law, and it clearly shows that the operational debt has not been paid by the Corporate Debtor - application admitted - moratorium declared. - CP (IBC)/25/KOB/2021 - - - Dated:- 21-12-2021 - Ashok Kumar Borah, Member (J) And Anil Kumar B., Member (T) For the Appellant : Pramod Kumar, Advocate For the Respondents : Anil D. Nair, Advocate ORDER Ashok Kumar Borah, Member (J) This application has been filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short to be referred hereinafter as the 'Code') by M/s. Korea Trade Insurance Corporation, having registered office at 14, Jong-ro, Jongno-gu, Seoul, 03187, South Korea. (CIN No. 102-82-06816) (hereinafter referred to as 'Operational Creditor') through its Authorized Representative, Mr. Ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor all the rights and claims, arising from the said transaction vide Letter of Assignment dated 08.09.2020. Thereafter, the Operational Creditor informed the Corporate Debtor about the said Letter of Assignment dated 08.09.2020, vide email dated 07.10.2020. 3. It is stated that in compliance with Section 8 of the Code read with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, the statutory Demand Notice dated 28.11.2020 was duly issued by the Operational Creditor to the Corporate Debtor both by e-mail and speed post-dated 28.11.2020, 01.12.2020, respectively which was delivered to its Factory Address and to its Registered Office on 07.12.2020. The Corporate Debtor has sent a reply dated 07.12.2020 by e-mail and by Courier, whereunder, they did not dispute about their liability to pay the outstanding dues to the Operational Creditor. The Operational Creditor then issued a rejoinder to the Corporate Debtor's reply dated 07.12.2020, vide Speed Post dated 23.12.2020, which was delivered to the Corporate Debtor's Registered Office on 29.12.2020. Thereafter, the Operational Creditor has not received any payment of the outstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration could not have been assigned to Applicant without the prior express consent of the Corporate Debtor. It is also stated that the Letter of Assignment dated 08.09.2020 is not valid and, therefore, the Corporate Debtor cannot be held liable under an invalid instrument. The Letter of Assignment dated 08.09.2020 is not a legally enforceable document for non-fulfilment of legal requirements prescribed under Indian law and therefore no legal consequences can follow from such an instrument to the prejudice of the Corporate Debtor. 7. It is also stated that the claim does not qualify as an 'Operational debt' as defined under Section 5(21) of the Code. The disputed claim cannot form the basis of an application under Section 9 of the Code. 'Dispute' as defined in Section 5(6) of the Code includes dispute with respect to existence of the amount of debt or dispute as to quality of goods supplied. In this regard it is submitted that the Corporate Debtor had raised a dispute as to the quality of goods supplied under the Sales Contract vide its email on 02.06.2020. Furthermore, the Corporate Debtor had flagged the issue regarding detention charges incurred by it on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials supplied are of inferior quality and could not be used by Corporate Debtor was not supported by any documentary evidence. The Corporate Debtor was not able to produce any evidence to show that there is a pre-existing dispute in the instant case. Considering these facts and circumstances, we are of the opinion that the nature of the Debt is an 'Operational Debt' as defined under Section 5(21) of the Definitions under the Code. There is a Default as defined under Section 3(12) of the Code on the part of the Corporate Debtor. 12. The Operational Creditor has not proposed the name of any resolution professional to be appointed as Interim Resolution Professional. 13. The application made by the Operational Creditor is complete in all respects as required by law, and it clearly shows that the operational debt has not been paid by the Corporate Debtor. ORDER 14. In the given facts and circumstances, we are of the view that the present application is complete and the Operational Creditor is entitled to claim its dues, which remain unpaid by the Corporate Debtor. In the light of above facts and circumstances the present application is to be admitted for in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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