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TMI Blog2022 (7) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-standard in the quality then it was pending in any court of law or before any other authority. Thus, it can be safely inferred from affidavit (page 19 of petition) under Section 9(3) (b) of I B Code, 2016 that there is no pre-existing dispute in relation to the debt claimed as per Part IV of Form 5. Whether this petition is filed within limitation? - HELD THAT:- A demand notice dated 06.11.2018 in Form 3 attached as Annexure 8 was duly served on the corporate debtor through registered post. It is observed that neither any reply from the corporate debtor has been filed in lieu of the above stated demand notice nor any payment has been made. Therefore, the period of limitation would begin from the date of default i.e. 17.05.2018. This petition was filed on 07.01.2019 vide Diary No. 56. Therefore, this Adjudicating Authority finds that this petition was filed within limitation. It is seen that the petition preferred by the petitioner is complete in all respects. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the petitioner - Also, the petitioner proved the debt and the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he deponent being the partner of the petitioner firm and the post was mailed by the Chartered Accountant of the petitioner firm and this demand notice was duly served to the corporate debtor. The demand notice was duly delivered to the corporate debtor vide post on 17.11.2018. The copy of postal receipt and tracking report, vide which the demand notice was duly served to the corporate debtor, is attached with the petition as Annexure 9. 6. In Part-III of Form No. 5, Mr. Aditya Kumar, Registration No. IBBI/IPA-001/IP-P00338/2017-18/10609 has been proposed as Interim Resolution Professional (IRP) by the petitioner. Form No. 2 dated 26.12.2018 submitted by the proposed IRP is also enclosed with the petition, in which he has stated that he is not serving as a IRP/RP/Liquidator in any proceedings. It is also stated that there are no disciplinary proceedings pending against the professional with the Board or with Indian Institute of Insolvency Professionals of ICAI. 7. Accordingly, order dated 11.03.2019, notice of this petition issued to the corporate debtor to show cause as why this petition be not admitted. 8. The following averments submitted by the respondent-corporate debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that the demand notice was duly served to the corporate debtor vide post on 17.11.2018. 4. The preliminary objections raised by the respondent-corporate debtor are denied as the demand notice has been signed by one of the partner of petitioner-operational creditor who is duly competent to file notice under Section 8 of IBC, 2016. 5. The date of default has been rightly mentioned as 17.05.2018 as the corporate debtor has not made payment starting from the invoice dated 10.05.2018 and, a credit period of 7 days has been given thereafter. 6. As the corporate debtor has failed to make payments from invoice dated 10.05.2018 onwards, the date of default would start from 17.05.2018. 10. Both the parties have filed short written submissions vide Diary No. 00321/01 dated 05.04.2022 and Diary No. 00321/2 dated 19.04.2022, respectively reiterating their respective stands taken in the petition, reply and replication. We have heard the learned counsel for the petitioner and corporate debtor and have perused the records. 11. The first issue for consideration is whether the demand notice in Form 3 dated 06.11.2018 was properly served. The demand notice was duly serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussed above, there is a total unpaid operational debt (in default) of Rs. 74,02,917.00/- (which is inclusive of 24% interest p.a. i.e ₹ 7,23,867/- from the date of default till date). The operational creditor has supplied goods to the corporate debtor and raised invoices attached as Annexure 4. Ledger accounts maintained by the operational creditor have been attached at Annexure 5. It is noted that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till date. Thus, the conditions under Section 9 of the Code stand satisfied. Accordingly, the petitioner proved the debt and the default, which is more than Rupees one lakh (prior to the amendment in threshold limit of one crore vide notification No. S.O.1205(E) dated 24.03.2020) by the respondent-corporate debtor. 15. In the present petition, all the aforesaid requirements have been satisfied. It is seen that the petition preferred by the petitioner is complete in all respects. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the petitioner. In view of the satisfa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce with the provisions of Section 16(5) of the Code; ii.) In terms of Section 17 of the Code, from the date of this appointment, the powers of the Board of Directors shall stand suspended and the management of the affairs shall vest with the Interim Resolution Professional and the officers and the managers of the Corporate Debtor shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the Code, including taking control and custody of the assets over which the Corporate Debtor has ownership rights recorded in the balance sheet of the Corporate Debtor etc. as provided in Section 18 (1) (f) of the Code. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the Corporate Debtor; iii.) The Interim Resolution Professional shall strictly act in accordance with the Code, all the rules framed thereunder by the Board or the Central Government and in accordance with the Code of Conduct governing his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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