9911796707
TMI Blog2017 (9) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... l is Rs. 5.00 crores (Rupees five crores) and the registered office of the Corporate Debtor is located at A-21/24, Naraina Industrial Area, Phase-II, New Delhi-110028. 2. It is the claim of the Applicant that it is engaged in the business of manufacturing and supplying of steel pipes to meet the requirements of its customers engaged in specified industries like automotive, power plants, heat exchanges etc. It is further represented that the Corporate Debtor placed two purchase orders bearing Nos.ICL/CHP/004/P001 and ICL/CHP/003/P002 for manufacturing compressed air piping system for its main plant building of 1.2 GW Solar P.V. Manufacturing Project at the project site located in Kutch, Gujarat and as per clause 3.1 of both the purchase orders, 100% payment was required to be made against 60 days Letter of Credit, on submission of the pro forma invoice and signed copy of the acceptance of the project order. It is the claim of 'Operational Creditor' that the 'Corporate Debtor' was not able to open Letter of Credit as contemplated above. Two post dated cheques for Rs. 68,94,223 and Rs. l,01,07,853 in relation to the first purchase order and second purchase orders, res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment. 3. Since the Petitioner did not receive the notice of dispute nor the payment in relation to the amount defaulted, it is represented that the Petitioner has been forced to file this Petition for initiating the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The above matter was listed before the Hon'ble Principal Bench on 31.5.2017 and since the proof of service of notice under Section 8 of IBC,2016 was not filed the Petitioner was directed to file an affidavit for the said purpose within a period of one week and the matter was listed on 28.6.2017. 4. It is seen from the records that a reply has been filed by the Corporate Debtor and after hearing the parties on 7.7.2017, the matter was reserved for orders. At the time of arguments on 7.7.2017, Ld. Counsel for Corporate Debtor took us through the reply. The main contention of the Corporate Debtor is in relation to maintainability of the Petition on the ground that there is an existing dispute. The 'Corporate Debtor' does not deny about placing of the two purchase orders and that both the purchase orders were dated 31.3.2016, first one being for Rs. 68,94,223 and the second one for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dishonoured. It is further submitted by the 'Corporate Debtor' that it is a reputed company and its financial affairs are sound and that the 'Operational Creditor' has also filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 against the Corporate Debtor before the Ld. Additional Chief Judicial Magistrate, Kalol which has not been disclosed before this Tribunal. Further, there has been a failure on the part of the 'Operational Creditor' to mention about reply dated 16.1.2017 given by the Corporate Debtor in relation to the notice of demand dated 4.1.2017 under the Negotiable Instruments Act, 1881. Further, the 'Operational Creditor' has also failed to bring to the notice of this Tribunal about the Petition for quashing of the criminal complaint filed before the Hon'ble High Court of Gujarat bearing Special Criminal Application (Quashing) No. 2448/2017 and the order of stay passed by the Hon'ble High Court of Gujarat dated 10.4.2017 in relation to the criminal proceedings pending before the Ld. Additional Chief Judicial Magistrate, Kalol. Further, it is also claimed that there is a discrepancy in the amount rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt and 'operational debt'. The definition given in Section 5(21) in relation to 'operational debt' is as follows: "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; 8. The above definition necessarily connotes that those debts which are of the nature as prescribed under the definition of Section 5(21) above, can be only treated as an operational debt. Hence, not all debts can be considered for the purpose of Code as an operational debt unless such debt falls within the ambit of the definition of Section 5(21) of IBC, 2016, The provisions of IBC, 2016 in relation to a 'Operational Creditor' also provides that the Corporate Insolvency Resolution Process can be initiated where there is a default in the payment of debt due to the 'Operational Creditor' in accordance with the definition provided under Section 5(20) of IBC,2016 which defines an 'Operational Creditor' to mean a person to whom an 'operational deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and commitments. Notwithstanding the above, we also understand that your outstanding are to be cleared simultaneously along with the above assurances. Please note that you will hear from us soon for this. Best Regards, Paramjeet Singh. 9. The above email clearly demonstrates that neither the amount is disputed nor quality of the goods is being questioned in the said email nor a breach of warranty or representation broached. On the other hand, an assurance is made that the payment will be cleared as it has taken a long time to clear the same. Hence, the above email demonstrates that there has been an express admission on the part of the 'Corporate Debtor' to make the payment to the 'Operational Creditor' of the required sum for the goods supplied. However, for establishing a dispute subsequently it is seen that a plea is made by the Corporate Debtor that a notice of dispute was sent to the Operational Creditor in response to its notice of default issued under Section 8 vide reply dated 17.5.2017. The notice of dispute it must be taken note of is beyond the statutory period of ten days as provided under IBC,2016. On going through the contents of the said re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition. 12. From the Application it is seen that under Part III of the same, the 'Operational Creditor' has left the choice of appointing Interim Resolution Professional to the Tribunal/Board. In the circumstances, by virtue of Section 16 of IBC, 2016 reference is made to Insolvency and Bankruptcy Board of India (IBBI) who will on receipt of the reference from this Tribunal recommend the name of the Insolvency Professional to this Tribunal as against whom no disciplinary proceedings are pending, within 10 days from the date of receipt of the reference. However, in view of the Petition being admitted, the moratorium as contemplated under Section 14 of IBC,2016 to the following effect is declared in relation to the 'Corporate Debtor' and the terms of moratorium is reproduced hereunder: (1) This Tribunal, being the Adjudicating Authority declares a moratorium for prohibiting all of the following in relation to 'Corporate Debtor', namely:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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