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TMI Blog2022 (7) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption that the amount claimed by the Operational Creditor is acknowledged and admitted by the Corporate Debtor. It further indicates and tentamounts to the inability and incapability of the Corporate Debtor to pay off its outstanding operational debt to the Operational Creditor. Application admitted - moratorium declared. - C. P (IB) No. 324 /KB/2019 - - - Dated:- 29-6-2022 - Mr. Rohit Kapoor , Member ( Judicial ) And Mr. Harish Chander Suri , Member ( Technical ) Mr. Abhikshek Sikdar, Adv. Ms. Pallavi Ray, Adv. For Operational Creditor ORDER Per : Harish Chander Suri , Member ( Technical ) 1. The Court is convened by video conference today. 2. This petition under 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules,2016 has been filed by M/s Chandak Commercial Private Limited, through its Director Mr. Uttam Kumar Chandak, (hereinafter referred as the Operational Creditor), seeking initiation of corporate insolvency resolution process (CIRP) in respect of M/s BKS Leather Exports Private Limited, having its registered office at AA-5, Prafulla Kanan, Sivayan Apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor to the Operational Creditor that had caused the Operational Creditor to issue notices dated 19th December, 2018 in form-3 under Rule 5 of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, which was duly received by the Corporate Debtor on 24th December, 2018 but the same was not replied back. The Demand Notice sent in Form-3 with two postal receipts and two article tracking report are marked as Exhibit-H. 7. Since, the Operational Creditor and the Corporate Debtor were in regular transactions, the Corporate Debtor had been assuring the payment. There has been an inordinate delay due to banking on such misrepresentations of the Corporate Debtor. 8. It is submitted that the Corporate Debtor is in default of a sum of Rs.6,33,520/- along with interest @ 18% per annum which comes to Rs.1,33,458/-. Therefore, the total amount due and payable with interest is Rs.7,66,978/- 9. The Operational Creditor further submits that the Operational debt has become due because the unpaid tax invoice and challans constitute a legal, valid and binding contract between the Operational Creditor and the Corporate Debtor under which the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to be rejected at the very outset because the reply is unfounded and baseless. It is denied that the Corporate Debtor had returned the goods in due course of business to the Operational Creditor. It is submitted that the Operational Creditor was sent goods worth Rs. 99,987/- only after the filing of the application, which was accepted by the Operational Creditor, so now the claim of the Operational Creditor amounts to Rs.5,33,533/-It is further submitted that the Corporate Debtor has accepted the claim of the Operational Creditor in Para-D of its reply and has agreed to pay back and once the claim amount is accepted by the Corporate Debtor, it makes it clear that the Corporate Debtor was in default. 15. It is submitted that the Operational Creditor has filed the application under section 9 of the Code against the Corporate Debtor for initiation of CIRP for the aforesaid amount and therefore, prays that the reply of the Corporate Debtor be ignored and the petition be accepted. 16. During the course of arguments, the Ld. Counsel for the Operational Creditor submitted that the Operational Creditor was awarded purchase orders in terms of which the Operational Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the parties giving rise to this operational debt have not been denied or disputed. The only averment in the reply affidavit is that the Corporate Debtor was negotiating with the Operational Creditor for returning of unused lining cloths, which was in good condition and a request to appropriate the value of the returned goods against the claim of the principal amount of Rs.5,33,520/- ( Rupees Five Lacs Thirty Three Thousands and Five Hundred Twenty only) .The Corporate Debtor has further mentioned that a request was made to the Operational Creditor to waive the interest. The Corporate Debtor has not raised any other defence which could help the Corporate Debtor. On the other hand, the Operational Creditor has been able to prove the operational debt and the default. Even the Demand Notice has been duly served on the Corporate Debtor, which has not been responded to giving rise to the presumption that the amount claimed by the Operational Creditor is acknowledged and admitted by the Corporate Debtor. It further indicates and tentamounts to the inability and incapability of the Corporate Debtor to pay off its outstanding operational debt to the Operational Creditor. 23. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vency 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 the 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. ix) The Operational Creditor has not proposed name of any Insolvency Resolution Professional. Therefore, as per the provisions of Section 16(3) (a) of the IBC, so, we appoint Mr. Pratap Mukherjee, IRP having Reg. No. IBBI/IPA-001/IP-P02515/2021-2022/13851, email ID. [email protected] act as Interim Resolution Professional (IRP). He shall file Form-2, and that no disciplinary proceedings are pending against him with the Board. x) Mr. Pratap Mukherjee, is hereby appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan subject to production of written consent within one week from the date of receipt of this order. xi) The Interim Resolution Professional should convene a meeting of the Committee of Creditors and submit the resolution passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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