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TMI Blog2022 (11) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... paid operational debt (in default) of Rs. 1,67,27,124/-. The operational creditor supplied goods to the corporate debtor and raised invoices attached as Annexure A-2. 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. 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 satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition deserves to be admitted. Petition admitted - moratorium declared. - CP (IB) No. 209/Chd/Hry/2020 - - - Dated:- 28-10-2022 - Harnam Singh Thakur , Member ( J ) And Subrata Kumar Dash , Member ( T ) For the Appellant : Tushar Budhiraja , Advocate For the Respondents : Vishav Bharti Gupta , Advocate JUDGMENT Harnam Singh Thakur, Member (J) 1. The present petition is filed, under Section 9 of the Insolven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... One crore fifty-eight lakhs sixty-one thousand three hundred ninety-eight only) has been outstanding since the last supply made to Corporate Debtor Company on 09.01.2020. 4.2 In terms of an email dated 02.01.2020 received from Corporate Debtor Company along with the statement of account of petitioner for the period 01.04.2019 to 02.01.2020 (Annexure A-4) corporate debtor admitted an amount of Rs. 200,60,910.18 as on 26.12.2019. On 26.12.2020, as per the books of the petitioner-operational creditor, an amount of Rs. 2,14,28,519.52 was outstanding and recoverable from the Corporate Debtor Company. On reconciliation with the statement of account provided by Corporate Debtor Company, it appears that the difference is on account of an amount of Rs. 12,66,522.69 debited on 01.12.2019 by Corporate Debtor Company unauthorizedly on account of the Discount receivable (non-GST i.e. without reversing GST) which was neither communicated to Applicant nor accepted by them and is not permissible in law. In addition to this, Corporate Debtor Company also debited an amount of Rs. 1,01,010/- on different dates as per the statement attached as Annexure A-5. Accordingly, there is a difference of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 lakhs was transferred by the Corporate Debtor Company on 02.03.2020 in the same bank ICICI Bank Limited vide RTGS No. RTGSVIJBR520200302000 48104. These payments were discovered by the petitioner during bank reconciliation, but no advice or intimation or communication of any kind was sent by the Corporate Debtor to this effect. 4.6 The Corporate Debtor has accordingly failed to clear the entire default amount of Rs. 1,58,61,398/- and interest thereon and has also failed to demonstrate any pre-existing dispute. After payment of Rs. 30.00 lakhs, an amount of Rs. 1,28,61,398/- plus interest thereon continues to be in default. That after the service of notice, apart from Rs. 30.00 lakhs, neither any payment has been made by the corporate debtor nor there it has given any notice relating to the existence of a dispute or any record of the pendency of any suit or arbitration proceedings filed before the receipt of such notice in relation to such dispute nor any reply has been received within a statutory period of 10 days. 5. It is submitted by the petitioner in Form 5, Part IV that the amount claimed to be in default is Rs. 1,67,27,124/- (including interest @24% p.a amount of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d notice was duly served. 11. The next issue for consideration is whether the operational debt was disputed by the corporate debtor. The claim amount was not disputed. Rather, it is admitted that the amount was not paid due to financial crunch in the business. 12. The other issue for consideration is whether this application is filed within limitation. This application was filed on 06.10.2022 vide Diary No. 00724. Whereas the date of default is 30.01.2020, therefore, this Adjudicating Authority finds that this application has been filed within limitation. 13. We have gone through the contents of the application filed in the Form 5 and find the same to be complete. As discussed above, there is a total unpaid operational debt (in default) of Rs. 1,67,27,124/-. The operational creditor supplied goods to the corporate debtor and raised invoices attached as Annexure A-2. 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. 14. It is noted that the corporate debtor has failed to make payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33 as the case may be. 16. The Law Research Associate of this Tribunal has checked the credentials of Mr. Anil Kumar Singhal and there is nothing adverse against him. In view of the above, we appoint Mr. Anil Kumar Singhal, Registration No. IBBI-/IPA-001/IP-P00468/2017-18/10811, E-mail: [email protected] Mobile No. 9811190142 as the Interim Resolution Professional with the following directions:- i.) The term of appointment of Mr. Anil Kumar Singhal shall be in accordance with the provisions of Section 16(5) of the Code, subject to his written consent within 7 days of the order; 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor constitute a Committee of Creditors and shall file a report, certifying the constitution of the Committee to this Tribunal on or before the expiry of thirty days from the date of his appointment, and shall convene first meeting of the Committee within seven days of filing the report of constitution of the Committee; and viii.) The Interim Resolution Professional is directed to send a regular progress report to this Tribunal every fortnight. 17. The petitioner is directed to deposit an amount of Rs. 60,000/- (Rupees Sixty Thousand Only) with the Interim Resolution Professional to meet the immediate expenses of the CIRP within two weeks. The same shall be fully accountable by Interim Resolution Professional and shall be reimbursed by the Committee of Creditors (CoC) to the petitioner to be recovered as the CIRP cost. 18. A copy of this order be communicated to both the parties. The learned counsel for the petitioner shall deliver a copy of this order to the Interim Resolution Professional forthwith. The Registry is also directed to send a copy of this order to the Interim Resolution Professional at his email address forthwith. 19. This petition is accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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