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TMI Blog2022 (11) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... ode was delivered to the Corporate Debtor on 29 April, 2019. Whereas, the Corporate Debtor invoke the Arbitration Clause vide letter dated 11 July, 2019, which is way after than the demand notice under section 8 of the Code was delivered to them - The Hon ble Supreme Court in catena of Judgments has opined that in an Application under Section 9, the Corporate Debtor can point out any Pre- Existing Dispute raised prior to the issuance of Demand Notice under Section 8, IBC, 2016. The present petition made by the Operational Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time. Further, no disputes were ever raised by the Corporate Debtor. Petition admitted - moratorium declared. - C. P (IB) No. 1067/KB/2019 - - - Dated:- 28-10-2022 - Shri Rohit Kapoor : Member ( Judicial ) And Shri Balraj Joshi : Member ( Technical ) For the Operational Creditor : Mr. Ankan Rai , Adv. : Ms. Ankita Singh , Adv. For the Corporate Debtor : Mr. Sahil C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions by the Ld. Advocate appearing on behalf of the Corporate Debtor. 6.1 This instant petition has been filed by the Operational Creditor to harass the Corporate Debtor. The Operational Creditor has been approaching various forums in respect of the same dispute. 6.2 The amount claimed by the Operational Creditor as unpaid debt is not admitted by the Respondent and is strongly disputed. The scope of the Code is not for recovery of money claims but rather to act as a mechanism for the resolution of the Corporate Debtor. 6.3 Over a period of time, the Corporate Debtor discovered that the Operational Creditor misrepresented the facts; the Operational Creditor is not the owner of the leased premises. As per the municipal records, the said leased premise belongs to Mr.K.K. Chopra and Mr. Sudhir Chopra. 6.4 The second lease was predominantly was executed between the parties for the purpose of running a swimming pool by the Corporate Debtor. Further, upon a bare perusal of the second lease it would reveal that the Operational Creditor represented to the Corporate Debtor that the said leased premises has been constructed in conformity with the sanctioned plan and was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... divided into four limbs; (i) Suppression of the material facts and documents from this Adjudicating Authority. (ii) Pre-Existing Dispute (iii) Unpaid Lease Rentals is not an Operational Debt (iv) No valid notice was served under section 8 of the Code prior to the institution of the present proceedings. 7. Rejoinder of the Operational Creditor to the reply of the Corporate Debtor. 7.1 There is no bar in pursuing alternatives remedies along with seeking remedies before this Adjudicating Authority. Further, the Corporate Debtor had filed the application under 11(6) of the Arbitration and Conciliation Act, 1996 after the issuance of the demand notice under section 8 of the Code. The Corporate Debtor also failed to reply notice under section 8 of the Code. 7.2 The penalty imposed by the Ranchi Municipal Corporation in Misc. Case No.45 of 2018 was passed on 26 June, 2018 and has no relevance in the present proceedings, which is much prior to the dispute in the present proceeding. 7.3 No objections has been raised by the Corporate Debtor with respect to the amount due and payable by the Corporate Debtor in their letter dated 21 February, 2019 and 22 February, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a three-year lease. The Code also provides for cases where a creditor has both a solely financial transaction as well as an operational transaction with the entity. In such a case, the creditor can be considered a financial creditor to the extent of the financial debt and an operational creditor to the extent of the operational debt. While both types of creditors can trigger the IRP under the Code, the evidence presented to trigger varies. Since financial creditors have electronic records of the liabilities filed in the Information Utilities of Section 4.3, incontrovertible event of default on any financial credit contract can be readily verifiable by accessing this system. The evidence submitted of default by the debtor to the operational creditor may be in either electronic or physical form, since all operational creditors may or may not have electronic filings of the debtors liability. Till such time that the Information Utilities are ubiquitous, financial creditors may establish default in a manner similar to operational creditors. 13. Further with respect to the second issue, it is pertinent to mention that as per the records at page 196 of the Petition, the demand not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; ii. Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; iii. 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); iv. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. c) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. d) Public announcement of the CIRP shall be made immediately as specified under section 13 of the Code read with regulation 6 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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