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TMI Blog2018 (7) TMI 1633X X X X Extracts X X X X X X X X Extracts X X X X ..... r'. 2. Before embarking upon consideration of legal issue raised in the instant application it would first be necessary to notice few material facts. The Operational Creditor is a company registered under the Companies Act, 1956 having its registered office at Indure House, Greater Kailash-2, New Delhi-110048 and the Corporate Debtor is also a company registered under the Companies Act, 1956 with CIN No. U10102DL2001PTC110495. 3. The other entity involved in the present proceeding is Monnet Ispat & Energy Limited (for brevity 'Monnet Ispat'). There is a tripartite agreement entered into between the Operational Creditor and Corporate Debtor on 27.05.2015 (Annexure-II) (Pgs. 95-97). The necessity of entering into the tripartite agreement had arisen because the Operational Creditor had entered into an understanding/agreement with Monnet Ispat for construction of power plant and supply of ancillary equipments. In other words, the agreement between the Operational Creditor and Monnet Ispat was for supply of goods and services. Accordingly, the Operational Creditor had made huge advances to Monnet Ispat for the construction of power plant and supply of ancillary equipments. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owards second party. Whereas Parties to this Agreement have agreed and confirm that debt of Rs. 30 cr. owed by the Third Party to the Second Party shall henceforth be assigned in favour of the Confirming Party and in consideration thereof the debt owed by the Second Party towards Confirming Party shall stand reduced to that extent. Now therefore this agreement does witnesseth and it is hereby agreed by and among the parties hereto as under: 1. That debt of Rs. 30 cr. which Third Party owes to Second Party shall stand assigned in favour of Confirming Party. 2. That debt of Second Party shall stand reduced to the extent of obligation of debt of the third Party being assigned in favour of Confirming Party. 3. That Confirming party shall accept and confirm to the arrangement of assignment of debt inter se between the Second and Third Party and all the parties to this Agreement shall adhere to the terms of this Tripartite Agreement. IN WITNESS WHEREOF the parties herein have signed the agreement in acceptance of all terms stated above on the date and place mentioned hereinabove. FIRST PARTY SECOND PARTY THIRD PARTY For THE INDURE PRIVATE LIMITED For Monnet Ispat & Energ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection raised by the Corporate Debtor is that assignment stipulate receivable of Rs. 30/- crores and is an actionable transaction. It has been urged that such a deed is exigible to payment of stamp duty as per Schedule-IA, Article 11 at the rate of 'One Rupee for every one thousand rupees or part thereto subject to a maximum of rupees one lakhs'. It has also been submitted that such a deed is compulsorily registrable under Section 17 of the Registration Act. The third objection raised is that no default has been established and what is the date when such a debt is payable/due as required by Section 8 read with Section 3(12) of the Code. According to Section 3(12) of the Code the expression default means non-payment of debt when whole or any part of the amount of debt has become due and payable and is not repaid by the debtor or the Corporate Debtor. Likewise, Section 8 of the Code has given a right to an Operational Creditor to initiate action by issuing demand notice on the occurrence of a default. Therefore, it has been maintained that no default has been established by giving the date when the debt has become due and payable. The last objection raised by the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the applicant is an Operational Creditor and the argument to the contrary advanced by Mr. Sibal would not be sustainable. 12. On the occurrence of default, a notice under Section 8 of the Code is required to be issued as is evident from the opening sentence of Section 8(1) of the Code. The fact that the amount has become due becomes evident from the payment sought to be made by three cheques which were taken back by the Corporate Debtor and the amount remained unpaid. The intention to recover and the willingness to pay stand established which was followed by issuance of a demand notice. Therefore, acknowledgement of debt is established by executing the tripartite agreement. The default has also been established on account of issuance of cheques and its non-payment has also been established. Therefore, it cannot be argued that default has not occurred. The expression default within the meaning of Section 3(12) of the Code has been defined to mean non-payment of debt when whole or any part of the amount of debt has become due and payable and is not paid by the Corporate Debtor. If this cannot be regarded as default what else could be so regarded. 13. Mr. Sibal has resisted the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh, ATS Greens Paradiso, Flat No. 02054, Tower-2, Plot No. GH-03, Sector CHI-01, Greater Noida- 201308, Registration No. IBBI/IPA-002/IPN00001/2016-17/10001 is appointed as an Interim Resolution Professional. 16. In pursuance of Section 13(2) of the Code, we direct that Interim Insolvency Resolution Professional shall immediately make public announcement with regard to admission of this application under Section 9 of the Code. The expression 'immediately' means within three days as clarified by Explanation to Regulation 6(1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 17. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of the moratorium flows from the provisions of Section 14(1)(a), (b), (c) & (d) and thus the following prohibitions are imposed which must be followed by all and sundry: "(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 deb ..... 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