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TMI Blog2022 (5) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Corporate Debtor, it is seen that the Corporate Debtor, throughout the averments made in the counter, seems to have only alleged that there exists a dispute between the parties. Further as per the contention of the Corporate Debtor, if the shipment was dispatched by the Applicant in violation to the seller's contract, the Corporate Debtor ought to have at least raised the objection at the point in time when the shipping company had sent a mail to the Corporate Debtor to clear the consignment. However, no documentary evidence or proof has been filed by the Corporate Debtor to show that it had objected to the shipment - the Operational Creditor has also filed an Affidavit under Section 9(3)(b) of IBC, 2016 wherein it has been stated that the Demand Notice has been served. Further in relation to the 'Pecuniary Jurisdiction' the total amount claimed to be defaulted exceeds Rs. 1 crore and as such this Tribunal has the 'Pecuniary Jurisdiction' to entertain this Petition, as filed by the Operational Creditor. The Petition as filed by the Operational Creditor, is required to be admitted under Section 9(5) of the IBC, 2016 - Application admitted - moratorium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Commercial Invoices dt. 19.06.2019 and 06.07.2019 raised by the Operational Creditor. 3. Invoice dt. 25.06.2020 evincing the payment of detention and demurrage charges by the Operational Creditor. 4. Copy of Demand Notice in Form 3 along with the proof of delivery 5. Reply dt. 23.10.2020 issued by the Corporate Debtor to the demand notice. 6. Working for computation of default. 7. Copy of email sent by APL Ltd., the shipping company to the Corporate Debtor. 8. Copy of Bank Statement for the period 19.06.2019 to 31.10.2020 of the Operational Creditor. 9. Affidavit of the Operational Creditor through its authorised director stating that the Operational Creditor has not received any notice of dispute of the unpaid debt in terms of section 9(3)(b) of the IBC, 2016. 4. The Learned Counsel for the Operational Creditor submitted that the Operational Creditor is engaged in trading scrap and semi-finished metal products. It was submitted that in the course of its business, the Operational Creditor and Corporate Debtor entered into a seller's contract dated 06.06.2019 ( Contract ). Under the terms of the said contract, the Corporate Debtor w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng up with the Corporate Debtor demanding the outstanding payment through numerous emails and calls. However, the Operational Creditor has neither received payment nor any response from the Corporate Debtor with regard to the outstanding amount. Thereafter, the Operational Creditor had issued a Demand Notice as stipulated under Section 8 of IBC, 2016 to the Corporate Debtor on 16.09.2020. 9. It is further averred in the application that in response to the demand notice the Corporate Debtor had sent a reply on 23.10.2020 which is placed as annexure II(6) along with the application. It submitted that there is neither a pre-existing dispute nor paid the outstanding amount to the Operational Creditor and hence it was submitted that the Operational Creditor has moved the present Application before this Tribunal seeking initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. 10. The Corporate Debtor has filed counter, written submissions and also submitted additional documents. The Learned Counsel for the Corporate Debtor submitted that the applicant is not an Operational Creditor as defined under Section 5 (20) of the Insolvency and Bankruptcy Code, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the operation of business . Thus, it is manifestly clear that the Applicant had supplied goods to the Corporate Debtor in terms of the Seller's Contract and therefore, the Applicant is an Operational Creditor and the debt owed to it is an Operational Debt. 17. As regards issue No. (ii) is concerned, on perusal of the counter filed by the Corporate Debtor, it is seen that the Corporate Debtor, throughout the averments made in the counter, seems to have only alleged that there exists a dispute between the parties. Further as per the contention of the Corporate Debtor, if the shipment was dispatched by the Applicant in violation to the seller's contract, the Corporate Debtor ought to have at least raised the objection at the point in time when the shipping company had sent a mail to the Corporate Debtor to clear the consignment. However, no documentary evidence or proof has been filed by the Corporate Debtor to show that it had objected to the shipment. Further, from the various mail's exchanged between the shipping company the Corporate Debtor as filed along with the application one such mail is reproduced below: 18. It is evident from the above mail sent by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uits or proceedings against the respondent 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 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 respondent 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 respondent. Explanation.-For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a licence, permit, registration, quota, concession, clearance or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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