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TMI Blog2022 (10) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Creditor under Section 9 of the Insolvency Bankruptcy Code, 2016 is hereby admitted for initiating Corporate Insolvency Resolution Process in respect of the CD-Matiz Metals Private Ltd. The date of admission of this petition is 30.09.2022. Applicaton admitted - moratorium declared. - CP ( IB ) No. 04/GB/2022 - - - Dated:- 30-9-2022 - Deep Chandra Joshi , Member ( J ) And Prasanta Kumar Mohanty , Member ( T ) ORDER Prasanta Kumar Mohanty , Member ( T ) 1. The present Petition has been filed by the Petitioner/Operational Creditor, i.e. M/s. Anvi Metcorp Pvt. Ltd. under Section 9 of the Insolvency and Bankruptcy Code 2016, read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 to initiate Corporate Insolvency Resolution Process in respect of the Corporate Debtor, namely, M/s. Matiz Metals Pvt. Ltd., seeking the following reliefs: i. To pass appropriate order to commence insolvency as per the Insolvency and Bankruptcy Code, 2016 against the Corporate Debtor. ii. To admit the debt payable to the Petitioner comprising a. Payment outstanding as per the ledger submitted; and, b. Interest @ 18% p.a. fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the claim but did not pay the company. The Operational Creditor also prepared ledger statement for the relevant period and the same was duly acknowledged by Corporate Debtor. Copy of the Statement of Accounts has been annexed. 3.5. The Operational Creditor thereafter sent Demand notice dated 18.2.2022 in Form 3 and Form 4 as prescribed under Section 6 and 8 of the Insolvency and Bankruptcy Code, 2016 to the Corporate Debtor at Registered Office and also at its administrative office on 18.02.2022 calling upon the Corporate Debtor to make payment of the operational debt due. The demand notices dispatched at the registered office and administrative office of the Corporate Debtor were duly received by the Corporate Debtor. Copy of Demand Notice U/s. 8 of IBC issued along with Postal Receipts has been annexed with the Application. 3.6. The Corporate Debtor on receipt of said demand notice has replied to the said demand Notice by its letter dated 25.2.2022 however, while admitting the liability requested for time to make payment. The copy of said reply dated 25.2.2022 has been annexed. 3.7. The Corporate Debtor in spite of assurance failed to pay the amount and there is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Company has adversely impacted as it created rush for safe investment in market due to on-going market volatility and pushed up the global gold prices higher. Further, the Respondent Company has entered into the contract with the few clients for sale and purchase of gold bar at the market prevailing market rates but the due to sudden increase in the price of gold, it has failed to fulfill its obligation towards the vendors and purchasers. 4.4. Owing to the economic slowdown triggered by Russia-Ukraine war, the Respondent Company was rendered powerless to fulfill its obligation of immediate payment to Applicant as agreed, however, the Respondent company has left no stone unturned to fulfill its obligation. 4.5. The reason of non-fulfillment of Respondent to the Applicant was due to unforeseen incident i.e., Russia-Ukraine war, hence in view of the submission made hereinabove, the instant application filed by the Applicant under section 9 of IBC-2016, is liable to be rejected and the Respondent should be granted the opportunity to revive its business activity. 5. The Applicant vide its rejoinder submits that : 5.1. The Reply of Corporate Debtor/Respondent covers the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of debt: The debt is due in the instant matter in pursuant to section 3(11) of IBC-2016, which states that debt mean a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. The debt is due in the instant matter which could be manifest from the confirmation of the ledger account by the Respondent itself in writing as on 17.03.2022, patently showing the outstanding debt due is Rs. 1,13,47,510.00 5.5. Existence of default: There is default in the instant matter in pursuant to section 3(12) of IBC-2016, which states that: Default means non-payment of debt when whole or any part or instalment of the amount of debt hers been due and payable is not paid by the debtor or the corporate debtor, as the case may be. The date of the default in the instant matter is 02.02.2022, as per the GST invoice. 5.6. Compliance of section 9 of IBC 2016: The demand notice u/s. 8 of IBC 2016 was issued on 18.02.2022 delivered on 21.02.2022. The Applicant/Operational Creditor has not received the debt amount after issue of demand notice to the CD till date. Thereafter application u/s. 9(1) of IBC 2016 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor admitting the fact that the debt is due and there is default on his part, hence raising such issue after occurrence of default is irrelevant. 6.6. There is debt u/s. 3(11) of IBC which is acknowledged by the Corporate Debtor by confirming the ledger account as well as there also is default u/s. 3(12) which is evident from the delivery challan issued by operational creditor on 01.02.2022 wherein the term of payment is on immediate basis. Since there is debt default u/s. 3(11) 3(12) of IBC-2106 respectively, and the application flied u/s. 9 of IBC has complied with the provision of section 9(2), 9((3) 9(4) of IBC 2016. Hence under this circumstance, the Hon'ble Bench may graciously be pleased to admit this application. 7. The matter was heard on 01.04.2022, 06.05.2022, 13.05.2022, 10.06.2022, 17.06.2022, 28.07.2022, 05.08.2022, 25.08.2022. The Respondent failed to appear for the last 3 hearings despite giving them sufficient opportunities to appear and present its case. This matter was last heard on 16.09.2022 ex-parte and reserved for orders. ORDER 8. Considering the materials made available by the Operational Creditor/Petitioner, the arguments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d. The recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. ii. The supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period. iii. The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. iv. The order of moratorium shall have effect from the date of admission till the completion of the Corporate Insolvency Resolution Process. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Sec. 31 or passes an order for liquidation of corporate debtor under Sec. 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. v. Necessary public announcement as per Section 15 of the IBC, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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