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TMI Blog2022 (8) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... he time being enforced. From the facts of the case it is clear that the Applicant was supplying Pet Coke, Steam Coal etc. to the Corporate Debtor against which it had also raised invoices which have been annexed at Annexure 2 of the Application. Copy of E-way bills have also been annexed at Annexure 3 of the petition which show the supply of goods - it is clear that the Applicant falls under the category of an Operational Creditor under Section 5(20) of the IBC and therefore has rightly filed this application claiming the amount of debt which is due to be paid by the Corporate Debtor. In the present matter at hand, there is a clear debt, repayment of which has been defaulted by the Corporate Debtor and there appears to be no pre-existing dispute between the parties. Any allusion to such dispute appears to be confirmed. Application admitted - moratorium declared. - IA (IBC) No. 163/JPR/2022 & CP No. (IB)- 12/9/JPR/2022 - - - Dated:- 29-7-2022 - SHRI DEEP CHANDRA JOSHI, HON BLE JUDICIAL MEMBER And SHRI PRASANTA KUMAR MOHANTY, HON BLE TECHNICAL MEMBER For the Operational Creditor : Javed Khan, Adv. For the Corporate Debtor : Aditya Vijay, Adv. ORDER Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 913/- (Rupees Two Crores Forty- Two Lakhs Fifty-Two Thousand Nine Hundred and Thirteen Only) and opening balance as on 01.04.2021 amounting to Rs. 26,56,467/- (Rupees Twenty-Six Lakhs Fifty-Six Thousand Four Hundred and Sixty-Seven Only) brings out a total of Rs. 2,69,09,380/- (Rupees Two Crores Sixty-Nine Lakhs Nine Thousand Three Hundred and Eighty Only). c. The Corporate Debtor during the period from 07.04.2021 to 08.10.2021 made certain payments against different invoices on different dates spanning across the aforesaid period which amounts to a total of Rs. 1,67,09,871/- (Rupees One Crore Sixty-Seven Lakhs Nine Thousand Eight Hundred and Seventy-One). Therefore, the outstanding debt which is due and payable by the Corporate Debtor amounts to Rs. 1,01,99,509/- (Rupees One Crore One Lakh Ninety- Nine Thousand Five Hundred Nine Only). For ease of reference the breakup of the total amount is tabulated below: Sr. No. Particulars Total A. Opening Balance as due from the Financial Year ending on 31.03.2021 Rs. 26,56,467/- B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itments and deliverables on part of the Corporate Debtor at any point of time. Going by the tests existence of dispute laid down by the Hon ble Supreme Court of India in catena of judgments, it is clear that without going into the merits of dispute if a plausible contention requiring further investigation which is patently feeble argument or as assertion on facts unsupported by evidence is raised then the petition deserves to be dismissed. c. The Corporate Debtor has further submitted that the Applicant does not fall within the definition of Operational Creditor as the invoices raised by the Operational Creditor were never acknowledged by the Corporate Debtor on account of the fact that the material that was supplied was defective. Therefore, the Applicant is wrong to say that there was a valid default against the payments which were due to him. The Applicant cannot claim money in the present matter as it is completely illegal claims for which they are not legible. d. The Corporate Debtor has submitted that they would be initiating appropriate legal proceedings before the competent Court of Law against the Corporate Debtor for breaching the conditions of a contract in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o supporting evidence or material has been placed on record by the Corporate Debtor in support of such defect. The Corporate Debtor has also not disputed the operational debt being claimed by the Applicant. The Applicant on the other hand has duly filed an affidavit u/s 9(3)(b) of the Code read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 deposing that no notice has been given by the Corporate Debtor relating to the dispute of the unpaid operational debt. 8. We have heard the learned counsels for the parties and perused the averments made in the application, reply, written submissions and the documents enclosed with this application. 9. This Adjudicating Authority having perused all the relevant papers and finding them in order notes that the Registered office of the Corporate Debtor is situated in Jodhpur, Rajastan and therefore this Adjudicating Authority has jurisdiction to entertain and try this application. Further, this matter is within the purview of the law of limitation, as the date of default is 08.10.2021, which is within the period of 3 years after the default occurred and the same has not been exhausted at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor disputing the supply or quality of the aforementioned goods. Rather, the Corporate Debtor has given a confirmation of the accounts by giving acknowledgement on the ledger maintained by the Applicant. This itself negates the contention of the Corporate Debtor that there was a dispute with respect to the supply of the goods mentioned in the invoices. 13. In view of the aforementioned, it is clear that the Applicant falls under the category of an Operational Creditor under Section 5(20) of the IBC and therefore has rightly filed this application claiming the amount of debt which is due to be paid by the Corporate Debtor. 14. It is evident from the reasons stated hereinabove that Corporate Debtor has clearly defaulted in payment of debt due to the Operational Creditor. The Corporate Debtor has raised the contention of dispute just to flout the applicability of the provisions of IBC which states that if there is a preexisting dispute between the parties, an application filed under Section 9 of the Code is not maintainable. 15. In Mobilox Innovations Private Limited Vs Kirusa Software Private Limited, para 34, the Hon ble Supreme Court laid down what the Adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows: (i) The IRP appointed by the Adjudicating Authority, Mr. Chand Prakash Bhatia, is directed to take over the affairs of the Corporate Debtor and duties as required to be performed by him under the provisions of Code including issue of publication in widely circulated Newspapers as contemplated under the provisions of the Code and calling for claims from the creditors of the Corporate Debtor; and collation of the same shall be done. (ii) Further, as a sequel of admission, moratorium as envisaged under Section 14 of the Code is invoked in relation to the Corporate Debtor which will be in vogue during the CIRP of the Corporate Debtor. The IRP shall carry out CIRP strictly as per the timelines specified and as envisaged under the provisions of the Code in relation to the Corporate Debtor. (iii) The said IRP shall act strictly in accordance with the provisions of the Code and with a view to defray his expenses to be incurred and fees on account, the Applicant is directed to deposit a sum of Rs. 2,00,000/- (Two Lakhs Only) within seven days from the date of this order. This amount shall be proportionately contributed and reimbursed to the Applicant upon formation of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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