TMI Blog2017 (8) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... nt books of Corporate Debtor. Section 13 of the Code enjoins upon the Adjudicating Authority to exercise its discretion to pass an order to declare a moratorium for the purposes referred to in section 14, to cause a public announcement of the initiation of corporate insolvency resolution and call for submission of claims as provided under section 15 of the Code. Sub-section (2) of section 13 says that public announcement shall be made immediately after the appointment of Interim Resolution Professional. In the case on hand, simultaneous with the admission order, this Adjudicating Authority is not going to appoint Interim Resolution Professional because the Applicant did not propose the name of Interim Resolution Professional. But, this Adjudicating Authority will appoint Interim Resolution Professional after the same is recommended by the Insolvency and Bankruptcy Board of India under section 16(4) of the Code. (a) In view of the above discussion, the Petition is admitted. (b) This Adjudicating Authority hereby order reference to Insolvency and Bankruptcy Board of India to recommend the name of Insolvency Professional against whom no disciplinary proceedings are pending to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voices as per the following table; Particulars Credit Memo No. Date of Credit Memo Amount Payment Terms Due Date of Payment P.O. No P.O. Date PO/16/1 1/4/2016 1 1/4/2016 105000 Net 30 Days 1/5/2016 PO/16/69 6/4/2016 2 6/4/2016 12760 Net 30 Days 7/5/2016 PO/16/78 9/4/2016 3 8/4/2016 42000 Net 30 Days 7/5/2016 PO/16/152 15/4/2016 4 15/4/2016 105000 Net 30 Days 16/05/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 Days 15/08/2016 PO/16/1156 20/7/2016 22 20/7/2016 121500 Net 30 Days 21/08/2016 PO/16/1240 27/7/2016 23 27/7/2016 121500 Net 30 Days 28/08/2016 PO/16/1325 3/8/2016 24 3/8/2016 17010 Net 30 Days 4/9/2016 PO/16/1326 4/8/2016 25 4/8/2016 121500 Net 30 Days 5/9/2016 PO/16/1382 10/8/2016 26 10/8/2016 121500 Net 30 Days 11/9/2016 PO/16/1467 19/8/2016 27 19/8/2016 122500 Net 30 Days 20/09/2016 PO/16/1557 29/8/2016 28 29/8/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 22/11/2016 43 22/11/2016 225000 Net 30 Days 23/12/2016 PO/16/2295 22/11/2016 44 23/11/2016 140000 Net 30 Days 24/12/2016 PO/16/2372 30/11/2016 45 30/11/2016 140000 Net 30 Days 1/1/2017 PO/16/2446 7/12/2016 47 7/12/2016 23490 Net 30 Days 8/1/2017 PO/16/2451 9/12/2016 48 9/12/2016 137500 Net 30 Days 10/1/2017 PO/16/2513 16/12/2016 49 16/12/2016 139125 Net 30 Days 17/1/2017 PO/16/2594 24/12/2016 51 24/12/2016 132500 Net 30 Days 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and listed the matter on 4th April, 2017. 7. On 4th April, 2017, Operational Creditor filed proof of service of notice on the Corporate Debtor. 8. Heard learned PCS on behalf of the Operational Creditor. None present on behalf of the Corporate Debtor. 9. In order to pass an order under section 9 (5) of the Code, the Adjudicating Authority shall necessarily give a finding on the following aspects; (i) Whether the claim is an operational debt or not; (ii) Whether Applicant comes within the definition of Operational Creditor ; (iii) Whether M/s. Stratus Foods Private Limited, is a 'Corporate Debtor'; (iv) The requirements of sub-sections (1) to (4) of section 9 of the Code read with Rules 5 and 6 of the Rules, 2016 have been followed by the Applicant. 10. (i) Sub-section (21) of Section 5 of the Code defines Operational Debt as under; (21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority;' In the case on han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by sub-sections (2) and (3) of section 9 respectively of the Code. In the case on hand, Operational Creditor did not propose a Resolution Professional to act as an Interim Resolution Professional as required by sub-section (4) of section 9 of the Code. Here, it is pertinent to refer to sub-section (3) of section 16 of the Code. It says, in an application for corporate insolvency resolution process filed by an operational creditor, if there is no proposal for an interim resolution professional is made, the Adjudicating Authority shall make a reference to the Board, namely Insolvency and Bankruptcy Board of India, for the recommendation of an insolvency professional who may act as an interim resolution professional within ten days from the date of receipt of the reference. Therefore, on the ground that Operational Creditor did not comply with sub-section (4) of section 9 of the Code, the Petition cannot be rejected. This Adjudicating Authority shall follow the procedure laid down under sub-section (3) of Section 16 of the Code, and the Insolvency and Bankruptcy Board of India shall follow sub-section (4) of Section 16 of the Code. Therefore, this Adjudicating Authority, by this or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (d) However, the supply of goods and essential services to the corporate debtor shall not be terminated or suspended or interrupted during moratorium period. The moratorium order in respect of (i), (ii), (iii) and (iv) above shall not apply to the transactions notified by the Central Government. 15. This order of moratorium shall be in force from the date of order till the completion of Corporate Insolvency Resolution Process subject to the Proviso under sub-section (4) of section 14. This Adjudicating Authority shall give separate order for public announcement at the time of appointment of an Interim Resolution Professional after the proposal is received from the Insolvency and Bankruptcy Board of India. 16. This Petition is ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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