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TMI Blog2022 (9) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... demand notice. The documentary evidence placed clearly shows that the debt is due and payable by the Corporate Debtor. However, the same has not been paid. The application is complete and deserves to be admitted - petition admitted - moratorium delcared. - CP (IB) No. 35/9/HDB/2021 - - - Dated:- 16-9-2022 - Dr. N. Venkata Ramakrishna Badarinath, Hon ble Member (Judicial) And Shri Veera Brahma Rao Arekapudi, Hon ble Member (Technical) For the Petitioner: Shri.Pranay Sohini, Advocate. For the Respondent: Shri Dammalapati Srinivas, Senior Advocate, Shri vimal Vasireddy Advocate. ORDER 1. This Petition is filed under Section 9 of Insolvency and Bankruptcy Code (hereinafter to be referred as Code ), read with Rule 6 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, seeking admission of the petition, initiation of Corporate Insolvency Resolution Process (CIRP), granting moratorium and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon, contending that the Respondent defaulted in the payment of alleged debt of Rs. 6,80,16,090.83/- (six crores eighty lakhs sixteen thousands ninety rupe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editor didn t substantiated the same with any documentary evidence. (c). That for arguments sake if the Operational Creditor is considered as the legal entity as Green Ark, the Corporate Debtor is still not liable to pay any amount and more particularly under the purchase orders being relied upon by the Operational Creditor. (d). That the Corporate Debtor placed purchased with Green Ark for the supply and installation of 20000 AMR based modems, Antenna with cable communication, Installation commissioning of modems, Integration of Modems with MDAS software and Facility Management Service (FMS) for a period of 63 Months from the date of go-live for the R-APDRP project for TANGEDCO(Tamil Nadu Generation and Distribution Company). (e) That the Green Ark had supplied only 16140 modems against the ordered number of 20000.Out of supplied 16140 modems, Green Ark had completed the installation of only 2945 modems. Further submitted that due to delay in installation of modems, the TANGEDCO(the principal contractor) had stopped the payment to Corporate Debtor. (f) That despite being the shortfall in the supply of modems, The Corporate Debtor still paid the 40 % of the cost i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under 71 Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing i.e., before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect the application (3). In in the same ruling, it has been also that, Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine: (i) Whether there is an operational debt as defined exceeding Rs.1 lakh? (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected. (Emphasis is ours). 8. Thus the sine qua non for triggering the CIRP against the corporate debtor by the operational creditor is existence of debt and default .In so far as the case on hand is concerned there is no dispute raised with regard to the existence of debt between the operational creditor and corporate debtor and in fact the corporate debtor had even made part payments towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); the recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor; (b) Notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concessions, clearances or a similar grant or right during the moratorium period. (c) That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (d) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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