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TMI Blog2022 (3) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... ned with a remark SHIFTED - In the facts it is seen that the applicant clearly comes within the definition of Operational Creditor as the Corporate Debtor itself has admitted the fact of receiving goods supplied by the applicant. On a bare perusal of Form -5 filed under Section 9 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the same. An application under Section 9 of the Code is acceptable so long as the debt is proved to be due and there has been occurrence or existence of default. In respect of applications filed before 24.03.2020 what is material is that the default is for at least ₹ 1 Lakh. In view of Section 4 of the Code, the moment default is of Rupees one lakh or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised and last part payment was made on 14.01.2015. 3. The applicant further stated that the corporate debtor issued three cheques totaling ₹ 25,00,000/- towards part payment but the said cheques got dishonored vide banker's memo dated 20.07.2015. Proceeding under Section 138 of Negotiable Instruments Act has already been initiated against the corporate debtor. 4. As per part-IV the corporate debtor is liable to pay ₹ 55,02,334/- which is pending to be paid by corporate debtor to the applicant. 5. The applicant sent a demand notice under Section 8 of the Code at the registered office of the corporate debtor on 28.12.2017, however the said demand notice returned to its origin with a reason SHIFTED . The applicant v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge its liability. ii. The applicant denied the fact that scrap batteries were supplied by the Corporate Debtor and adjustments is to be made from the operational debt. It has been pointed out that in case some scrap batteries were supplied it should have been made through proper invoice or G.R and no such supporting documents has been placed by corporate debtor. iii. In respect of limitation the applicant submitted that the cheques were dishonored on 20.07.2015 and the present petition is filed within 3 years from 20.07.2015, hence, the application is not barred by limitation. 8. We have heard Ld. Counsel for the parties. We have perused the averments made in the application reply, and rejoinder and written submissions file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted its liability to pay ₹ 3,10,789 which is more than ₹ 1 lac, the claim of applicant deserves to be allowed. 12. The applicant has not proposed the name of an IRP. Therefore, this bench appoints Mr. Anshuj Dhingra as the Interim Resolution Professional of the corporate debtor. The registration number of the IRP being IBBI/IPA-002/IP-N01152/2021-22/13842 and email id- [email protected]. IRP above named is appointed subject to the condition that no disciplinary proceedings are pending against him. The specific consent is required to be filed in Form 2 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rule, 2016 and made disclosures as required under IBBI (insolvency Resolution Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (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. 16. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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