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TMI Blog2022 (9) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to as the 'CIRP') against Sarv Awas Housing Bhiwadi Private Limited (for short hereinafter referred to as the 'corporate debtor/respondent'). The present petition has been filed in Form 5 as prescribed in Rule 6 (1) of the Rules. The petition is supported by affidavit of Mr. Manoj Kumar and the same is at page 17 of the petition. 2. The corporate debtor, namely, Sarv Awas Housing Bhiwadi Private Limited, is a company incorporated on 10.04.2013 under the Companies Act, 1956, having CIN U70100HR2013PTC048795 and its registered office is at C-40, Third Floor, Vyapar Kendra, Palam Vihar Gurgaon, Haryana- 122017. Therefore, the matter falls within the territorial jurisdiction of this Adjudicating Authority. Copy of master data of the corporate debtor is at 28 of the petition. 3. The brief facts, as stated in the petition, are that the operational creditor is a proprietorship firm primarily engaged in civil construction work, security and facility management services. The operational creditor and the corporate debtor enjoyed business relations since the period of March 2016 and the operational creditor is engaged in the construction of flats at the site of the corporate debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en further averred that to resolve the matter pertaining to outstanding dues, the corporate debtor agreed to handover the finished flats to the operational creditor in the project in consideration of the amount due. Therefore, both the parties signed a Memorandum of Understanding ('MOU') on 08.03.2019 (Annexure P-8) agreeing on the terms and conditions for clearing the outstanding dues by way of delivering the finished flats from the Aravali Garden Project in consideration to the outstanding dues of the operational creditor. However, still the corporate debtor failed to deliver and breached the terms and conditions in the MOU. Thus, in the petition, the operational creditor is claiming an amount of Rs.1,35,15,157/- out of which Rs.1,29,49,507/- is towards construction material supplied for the construction of flats and Rs.5,65,650/- is towards supply of security guards provided to the corporate debtor from 02.05.2016. 6. It has been alleged that corporate debtor issued a letter pertaining to balance confirmation in its book of accounts dated 10.05.2021, thereby confirming that the amount due is unpaid. Since, the respondent/corporate debtor failed to make the payment, the operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully. 10. The first issue for consideration is whether the demand notice in Form 3 dated 19.02.2022 was properly served. As discussed above, demand notice dated 19.02.2022 was sent through courier on the registered office of the respondent/corporate debtor and the same was delivered on 21.02.2022. Demand notice was also sent through e-mail on 07.03.2022 at the registered e-mail address of the corporate debtor as available on the master data of the MCA. 11. The next issue for consideration is whether the operational debt was disputed by the corporate debtor. The petitioner/operational creditor has filed an affidavit under Section 9(3)(b) of the Code, wherein it has been deposed that the it has not received any reply to the demand notice dated 19.02.2022 and that no notice has been given by the corporate debtor relating to a dispute of the unpaid operational debt and there is no pre-existing dispute between the parties. 12. The other issue for consideration is whether this application was filed within limitation. A perusal of the case file shows that the application was filed vide Diary No.00757 dated 22.04.2022 (refiled on 20.05.2022), whereas the date of default is 17.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, tribunal, arbitration panel or other authority; 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 Operational Assets and Enforcement of Security Interest Act, 2002; and 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. 18. It is further directed that the supply of essential goods or services to the corporate debtor as may be specified, shall not be terminated or suspended or interrupted during moratorium period. The provisions of Section 14(3) shall, however, not apply to such transactions as may be notified by the Central Government in consultation with any operational sector regulator and to a surety in a contract of guarantee to a corporate debtor. 19. The order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or unti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst Corporate Debtor; v.) It is hereby directed that the Corporate Debtor, its Directors, personnel and the persons associated with the management shall extend all cooperation to the Interim Resolution Professional in managing the affairs of the Corporate Debtor as a going concern and extend all cooperation in accessing books and records as well as assets of the Corporate Debtor; vi.) This Adjudicating Authority directs the ex-management and promoters of the corporate debtor to specifically comply with the provisions of the Sub Regulation (2) of Regulation 4 of the Insolvency Resolution Process for Corporate Persons Regulations, 2016. This Adjudicating Authority further directs that the Interim Resolution Professional should also make all efforts simultaneously to retrieve the required information from the computerized data of the corporate debtor from the systems handed over to the Interim Resolution Professional after initiation of CIRP. For retrieving relevant information, the Interim Resolution Professional may take the help of any digital forensic companies from the empanelled list available with the Registry of this Adjudicating Authority, if required. This is imperativ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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