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TMI Blog2018 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to as respondent) and authorisation in favour Shri Sujit Pattanaik is at Annexure-I of the petition. 2. The respondent was incorporated on 26.03.2009. Its CIN is U45206HR2009PTC038922 (Annexure-2 of the petition). The authorised and paid up share capital of the respondent is ~2500000001- and 11007000001- respectively as per company Master Data available at Annexure-2 of the petition. The company Master Data shows the registered office as LG Floor, Rider House, 136, Sector 44, Gurgaon. Therefore, the petition lies within the territorial jurisdiction of this Bench of the Tribunal. 3. The petition is filed in prescribed Farm 5 and in Part IV thereof the total amount of debt is stated to be ?1,65,16,349.55 including 137,68,496.35 as principal amount due in terms of the award dated 20.06.2015 plus 71,27,47,853.20 as interest at three times bank rate with monthly compounding on the aforesaid debt amount for the period starting from the date on which it fell due ti11 28.02.201 8. It is stated that the petitioner deals in manufacturing and trading of aluminium conductors, wires, cable, PVC insulated wires etc. and that during the course of business, the respondent in the year 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand Notice dated 25.01.2018 despatched on 27.01.2018 by speed post in Form 3 as well as Form 4 under Section 8(1) of the Code read with Rule 5 of the Rules. The copies of the Demand Notices dated 25.01.2018 (supra) and postal track record are stated to be enclosed as Annexure-7 of the application. The postal tracking report at page 133 of the petition shows the delivery on 31 .01.2018. It is stated that no reply was filed and therefore, the respondent failed to show any proceedings challenging the award dated 20.06.2015 (supra). A copy of the affidavit on behalf of the petitioner that no notice has been given by the respondent relating to the dispute of the unpaid operational debt is stated to be enclosed as Annexure-8 of the petition. 6. It is also stated that a copy of certificate issued by Axis Bank dated 03.03.2018 confirming that there is no payment received from the respondent of the full unpaid operational debt and the statement of accounts is stated to be annexed as Annexure-9 (colly) of the petition. It is prayed that an order initiating the ClRP as per the provision of the Code be passed and Interim Resolution Professional be appointed. In Part Ill of Form 5, Shri Giri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner does not fall within the ambit of the definition of operational debt as defined under Section 5(21) of the Code. 9. It is averred that the petitioner has already filed an Execution Petition before the Execution Court at Gurgaon, Haryana for the execution of the award passed under the MSMEDA, which is currently pending and the law is clear that no personlparty can seek similar relief arising from similar fact against the same party in different forums and that would amount to forum hunting and therefore, non-maintainable. It is stated that the order of the MSMEDA Arbitral Tribunal is an administrative order which provided no avenue/platfonn for the respondent to address the claim against it and the order was passed not following a judicial process and therefore, it is not an order that follows the principles of natural justice and fair trial. It is stated that the petitioner is seeking multiple remedies and indulging in forum shopping based on an administrative order which was obtained ex-parte against the respondent. 10. During the course of hearing, the learned counsel for the petitioner relied on the petition in Form 5 and stated that the debt arose from' suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor; and (d) such other information as may be specified. (4) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional. (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if, - (a) the application made under sub-section (2) is complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the application if the five conditions specified therein are satisfied. In view of the discussion made above, conditions (a) to (d) are satisfied in the present case. In the reply, the respondent has also not raised any objection to the satisfaction of the above conditions. The contentions raised by the respondent in its reply and arguments are now being considered. 17. The respondent's first contention is that amounts are due from its sister concern Sravanthi Energy Pvt. Ltd. and on receipt of the dues, the payment to the petitioner would be made. The respondent has not drawn attention to any agreement with the petitioner making receipt of dues from the sister concern a pre- condition to the payment to the petitioner. 18. The second contention is that the petitioner has already filed an execution petition before the execution court at Gurgaon Haryana for the execution of the award passed under the MSMEDA which is currently pending and the law is amply clear that no person/party can seek similar relief arising from similar facts against the same party in different forums and that would amount to forum hunting and therefore, would be non-maintainable. 19. The award is u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition. It is inter alia noted in the order that both the parties were present before the council on 06.05.2014 in its 27th sitting and the O.P. (respondent in the present case) filed counter before the Council with a copy to the petitioner. The O.P. (respondent in the present case) is stated to be absent in the 37th sitting of MSEFC on 20,06.2015. However, the position is that the respondent participated in the proceedings before the MSEFC and was given an opportunity of being heard and had filed counter before the MSEFC also. MSEFC also passed order on 20.06.2015 after considering the objections and issues raised by the respondent in the counter filed by it. 23. It would be relevant to refer to Section 18 of the Micro, Small and Medium Enterprises Development Act, 2006 which reads as under:- "I. Notwithstanding anything contained in any other law for the time being in force, any party to a dispute may, with regard to any amount due under section 17, make a reference to the Micro and Small Enterprises Facilitation Council. 2. On receipt of a reference under sub-section (I), the Council shall either itself conduct conciliation in the matter or seek the assistance of any instit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the petitioner supplied ACSR Moose for a total consideration of ?47,87,667/- to the respondent and due to certain irregularities in the payment made by the respondent, the complainant initiated arbitration proceedings under MSMEDA. Therefore, the respondent is accepting that the debt for goods supplied by the petitioner is due from them. This is also confirmed by the contents of paragraphs 1 to 4 of the reply in which it is stated that the respondent could not make payment to its suppliers since it did not receive paymentlfunds from its sister concern MIS Sravanthi Energy Private Limited. In view of the above discussion, it is held that the conditions provided for in section 9(5) (i) (a) to (d) are satisfied in the present case. 28. As regards Section 9 (5) (e) of the Code it has already been discussed above that petitioner has proposed Shri Giridhari Lal Sharma as Interim Resolution Professional and his registration certificate, declaration and consent are at Annexure-1 I (colly) of the petition. We find that that in Form 2 submitted by Shri Giridhari Lal Sharma, he has certified that there are no disciplinary proceedings pending against him with the Board or Indian Institute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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