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2018 (2) TMI 731 - Tri - Insolvency and BankruptcyInsolvency resolution process - existence of default in payment of debt - delivery of demand notice to the corporate-debtor - Held that:- There is no averment in the objections that the address of the corporate-debtor as furnished by the operational creditor was inicorrect. Rather, there is no challenge with regard to the delivery of the entire paper book, which was sent at the time of filing the instant petition and also receipt of notice of the instant petition issued by the Adjudicating Authority at the same address. Anyhow, the tracking report of the postal department with regard to delivery of the demand notice is the conclusive proof of the delivery and this objection seems to have been taken just for the sake of it. The resolution process can be initiated on occurrence of the default by the corporate-debtor as per Section 8(1) of the Code. Admittedly the respondent-corporate debtor has committed default as according to the respondent itself, there is an outstanding liability of ₹ 68,20,235/- as on 11.05.2017 as per its own ledger account as at Annexure R-1 attached with the objections. The application filed in Form No.5 is complete in all respects as the required information has been furnished. The petitioner has also complied with various clauses (a), (b) and (c) of Section 9 (3) of the Code as already discussed. The petitioner cannot be forced to buy goods from the respondent-corporate debtor and it has every right to claim the outstanding amount which is overdue. The petitioner admittedly stopped making purchases from the respondent-corporate debtor from May 2017 and sent the demand notice under Section 8(1) of the Code which would have been a sufficient alert for the respondent, to repay the outstanding amount. The respondent cannot raise a voice to say that there was no term fixed for payment for the outstanding amount on the ground that the transactions between the parties continued in the normal course of business since 2012 and that various payments have been made from time to time as reflected from the ledger account of both the parties. The above contention cannot be said to raising a 'dispute' which may be covered within the definition of the term as defined in sub-section (6) of Section 5 of the Code. If there is a difference of about ₹ 2 lacs in the total outstanding amount as per the books of account of the parties, that is for the Interim Resolution Professional or Resolution Professional as the case may be, to determine. The term 'default' is defined in sub-section (12) of Section 3 of the Code as per which non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be. One of the objections raised by the corporate debtor that there is concealment of material fact by the operational creditor with regard to the purchases made by the petitioner from the respondent is not acceptable as there is a categorical assertion of the petitioner that the goods/materials were supplied as per the invoices/bills (sales) to the corporate debtor and thereafter against the entire outstanding payment of supply of goods/materials there was adjustments/set-off in the books of account of the operational creditor as payments/part payments of entire outstanding amount by way of purchase of items of corporate debtor as per the summary statement. So, there is no force in the contention that there is concealment of the material facts. Instant petition deserves to be admitted. The instant petition is admitted declaring moratorium in terms of sub-section (1) of Section 14 of the Code.
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