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TMI Blog2018 (4) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... ne thousand three hundred and fifteen) only. The Operational v/debt fell due on 20.05.2015 when final arbitral award was passed in favour of the Operational Creditor. 2. The Operational Creditor, M/s. Orissa Stevedores Limited, having Identification No. U35112OR1978PLC000771 is a company incorporated under the provisions of Companies Act, 1956. The registered office of the Company is situated at OSL Towers, Link Road, Cuttack in Odisha. 3. The Corporate Debtor, M/s. The Orissa Minerals Development Company Limited, having Identification No. L51430WB1918GOI003026 is a company incorporated under the Companies Act, 1956. The registered office of the Company is situated at Sourav Abasan, 2nd floor, AG-104, Sector-ll, Salt Lake, Kolkata, West Bengal- 700091. The nominal share capital of the company is Rs. 60,00,00,000/- and paid up share capital of the company is 60,00,00,000/-. 4. The brief facts of the case, as stated in the application filed by the Operational Creditor, are as follows: (i) The Operational Creditor carries on business, inter alia, in stevedoring. On the other hand, the Corporate Debtor carries on business inter alia, in mining and export of minerals, including iro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. 04.09.2007 till realisation. (c) The OMDC shall reimburse to the OSL the sum of Rs. 2,02,412/- admittedly being withheld by OMDC together with interest @10% p.a. to be calculated from the date of last letter of demand, i.e. 08.02.2007 till realisation. (d) The OMDC shall return to OSL the sum of Rs. 50,00,000/- being the security deposit withheld by OMDC together with interest @10% p.a. to be calculated from the date of last demand, i.e. 20.11.2007 till realisation. (e) The OMDC shall reimburse to the OSL the sum of Rs. 29,02,938/- being the service charge for the balance quantity of iron ore fines handled at Paradip Port Area till 31.03.2007 being withheld by the OMDC together with interest @10% p.a. to be calculated from the date of last demand, i.e. 08.05.2008 till realisation. (f) The OMDC shall reimburse to the OSL the sum of Rs. 53,76,158/- being the service charge for the balance quantity of iron ore fines handled at Haldia Port Area till 31.03.2007 being withheld by the OMDC together with interest @10% p.a. to be calculated from the date of last demand, i.e. 08.03.2008 till realisation. (g) The OMDC shall reimburse to the OSL the sum of Rs. 9,60,000/- being th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Corporate Debtor by preferring an appeal under section 34 of the Arbitration & Conciliation Act, 1996 before the Ld. District Judge, Purba Medinipur, which was also rejected by the Ld. District Judge vide order dated 17.08.2016. 7. Further, the operational debt also fell due when the Demand Notice dated 12.09.2017 under section 8 of the I.B. Code, 2016 read with rule 5 of the l&B (Application to Adjudicating Authority) Rules, 2016 was delivered at the registered Office of the Corporate Debtor as also to all the Managerial Persons of the Corporate Debtor demanding payment in respect of the unpaid operational debt. 8. The Operational Creditor has further submitted that in spite of service of demand notice, neither the amount has been paid nor any existence of dispute has been brought to the notice of Operational Creditor by the Corporate Debtor. The total amount claimed to be as operational debt is Rs. 13,06,89,315/-, which is in default and due to the Operational Creditor to be paid by the Corporate Debtor against the work done for the Corporate Debtor and bills/ various invoices raised under the Contract Agreement dated 06.04.2005. 9. The Operational Creditor has submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 8(1) of the Insolvency and Bankruptcy Code, 2016 vide Annexure-T (Page 35).. .Further, the petitioner has enclosed the proof of service of Demand Notice vide Annexure-T (Page 36 & 37), which indicates that the demand notice was duly served upon Corporate Debtor as well as upon various Key Managerial Persons on 25.09.2017. 14. As per direction of the Tribunal dated 20th December, 2017, a further notice was also served upon the Corporate Debtor. Vide Supplementary Affidavit dated 28th December, 2017, the Operational Creditor has also submitted that an application under section 34 of the Arbitration and Conciliation Act, 1996 by the Corporate Debtor challenging an Award dated 20th May, 2015 before the District Judge, Purba Medinipore. The said application under section 34 of the Arbitration and Conciliation Act, 1996 was dismissed by an order dated 17th August, 2016 passed by the Ld. District Judge, Purba Medinipore. A copy of the order dated 17.08.2016 has also been annexed and marked as Annexure "B" to the Supplementary Affidavit. 15. The Operational Creditor stated that it has been served with an appeal filed before the High Court at Calcutta challenging the said ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lthough the Corporate Debtor extended the time to further one year and the aforesaid problem prevailed and thus the Corporate Debtor informed the Operational Creditor to shift the materials from the warehouse and was also ready to extend for further four months but in the meantime the petitioner raised bills and the management found the bills unreasonable and made deductions in the bills which was disputed by the Operational Creditor in the Arbitration. 21. The Corporate Debtor filed appeal against the arbitral award given by the Sole Arbitrator in favour of the Operational Creditor before the Ld. District Judge, Purba Medinipur, Tamluk, which was also rejected vide order dated 17.08.2016. It has been stated further by the Corporate Debtor that the appeal under section 34 was rejected only on the ground of limitation and was not allowed to amend the petition for inclusion of explanation for delay. The Operational Creditor has not initiated any execution proceeding within the next one year from the order dated 17.08.2016 and preferred a demand notice dated 12.09.2017 under section 8 of the l.&B. Code, 2016. 22. The Corporate Debtor has stated that it did not offer any reply to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate debtor. 26. The respondent in this case has no case that it paid the amount as demanded by the petitioner. On the other hand the documents filed by the Operational Creditor, it is clear that the Corporate Debtor has failed to make the payment of operational dues of Rs. 13,06,89,315/-, in spite of receiving the demand notice under 8(1) of the Insolvency & Bankruptcy Code, 2016. 27. The Operational Creditor has also filed the bank certificate in compliance of provision of section 9(3)(c) of the I.B.Code, which shows that the Operational Creditor has not received the payment from the Corporate Debtor in the accounts maintained by the Operational Creditor in HDFC Bank. Operational Creditor has also filed affidavit wherein it is stated that after issuing the demand notice, he has not received any notice of dispute from the Corporate Debtor. Thus the Operational Creditor has complied with the provision section 9(3)(b) and 9(3)(c) of the Insolvency & Bankruptcy Code. In this case, the operational debt is proved and settled by the Arbitral Award. 28. Ld. Counsel for the respondent submits that the amount claimed does not come within the definition of operational debt under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand notice. The contention on the side of the respondent that it did not offered any reply to the demand notice of the petitioner since the respondent preferred an appeal under section 37 of the Arbitration and Conciliation Act, 1996 is devoid of any merit. 31. It has come out in evidence that the said appeal was preferred after receipt of the demand notice by the respondent. The demand notice evidently served upon the corporate debtor on 25.09.2017. The above said appeal was preferred by the corporate debtor before the Hon'ble High Court on 14.11.2017. According to the Ld. Counsel for the corporate debtor the pendency of an appeal filed under section 37 of the Arbitration and Conciliation Act, 1996 before the Hon'ble High Court at Calcutta, bar a proceedings like this case and therefore this petition is liable to be dismissed. All other contentions in the reply affidavit regarding the denying of its liability were seen adjudicated in the arbitration proceedings and an arbitral award has been passed and on the basis of the award which was confirmed by the Learned District Judge Purba Medinipur, in Misc. Case, No. 48 of 2015 the petitioner filed this petition. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is passed for a public announcement as stated in Sec.13 of the IBC, 2016. The moratorium is declared for the purposes referred to in Section 14 of the Insolvency & Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Sec.15. The public announcement referred to in clause (b) of sub-section (1) of Insolvency & Bankruptcy Code, 2016 shall be made immediately. Moratorium under Sec.14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following: (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 authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security ..... X X X X Extracts X X X X X X X X Extracts X X X X
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