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TMI Blog2018 (11) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Companies Act, 1956 having its registered office at office No. 202, Kh. No. 548, First Floor, Mahipalpur, New Delhi-110037. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the place, is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of section 60 of the Code. 3. The applicant, M/s. Globe Express Services Private Limited, is a company incorporated under the provisions of the Companies Act, 1956 having its registered office at 204- 206, Anurag Business Centre, Off Waman Tukaram Patli Marg, Chembur, Mumbai-400071. 4. Shri Nitin Kapoor, working as Country Head in applicant company was duly authorized vide Board Resolution dated 05.10.2017 of the applicant company, to file the present application on behalf of the applicant for initiation of Corporate Insolvency Resolution Process against the respondent corporate debtor in terms of the provisions of the Code. 5. It is the case of applicant that in and around July 2017, the respondent approached the applicant for availing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent company from 18.07.2017 to 26.10.2017. It is further mentioned in the certificate that three cheques issued by the respondent company have been returned because of payment stop instruction by drawer and on account of availability of insufficient funds in the relevant account. 11. The matter came-up for hearing for the first time on 22.11.2017 and was re-notified to 05.12.2017 as no one appeared on the first date of hearing. On the subsequent date of hearing on 05.12.2017, Mr. Naresh Sharma Director of the respondent company appeared in person and accepted notice. A copy of the paper book was supplied to him in the court and two weeks time was allowed to the respondent to file reply. Subsequently, neither the director nor any other person appeared on behalf of the respondent nor any reply was filed by the respondent corporate debtor in the matter. Consequently, the respondent was proceeded ex parte vide order dated 29.01.2018, which is reproduced below for ready reference: "Mr. Naresh Sharma, Director of the respondent company after appearance once on 05.12.2017 has not appeared. Her was furnished a copy of the paper book in the court itself and was granted time to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the petitioner to file clarification in compliance of order dated 13.02.2018. 14. Applicant has filed affidavit on 27.04.2018 with the following clarification: "3. That it is submitted that on Page 2 of the Application as filed with the Hon'ble Adjudicating Authority, the details of the Authorised Representative of the Operational Creditor is rightly mentioned as Mr. Nittn Kapoor. The same even though contained in the heading "Particulars of the Corporate Debtor' pertains to the details of Operational Creditor in the relevant part. The same is in sync with the Form 5 as provided under the Insolvency and Bankruptcy Code (Application to Adjudicating Authority) Rules, 2016. 4. The entry at Page 13 of the Application is an inadvertent typographical error that mentions the title as Authorised Representative of the 'Corporate Debtor' instead of 'Operational Creditor'. It is specified, as is also evident from the Application, that the Authorized Representative that has filed the present Application is representing the 'Operational Creditor' and not the 'Corporate Debtor' mistake is a typographical error occurring on account of oversight. It is respectfully prayed that the same be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as maintained by the Petitioner Company is annexed herewith and marked as Annexure B (Colly)." 15. Besides in compliance of the order dated 24.05.2018 applicant filed amendment application by removing the following typographical mistakes: "In Para 2 of the Synopsis which presently reads as": "The Petitioner Company was incorporated under the Companies Act, 1956 and is engaged in the business of inter alia. The present Petition has been filed through Mr. Nittn Kapoor, Country Head of M/s. AGI Cargo Pvt. Ltd." The same be substituted with the following: "The Petitioner Company was incorporated under the Companies Act, 1956 and is engaged in the business of ocean and air freight forwarding. The present Petition has been filed through Mr. Nittn Kapoor, Country Head of M/s. Globe Express Services Pvt. Ltd." That after Para F, the following Para be supplemented by amendment: "F1. That various cheques were issued to the Petitioner by the Respondent Company towards part payment of their outstanding operational debt, yet all such cheques as issued were dishonoured and as such the outstanding liability of the Respondent Company towards the Petitioner Company continues till date. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if- (a) the application made under sub-section (2) is incomplete; (b) there has been repayment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Explanation.-For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred." 20. Admittedly, operational creditor issued notice under sub-section (1) of section 8 of the Code to the Corporate Debtor. However, despite of receipt of such notice, the corporate debtor had not disputed the claim nor submitted any reply in terms of sub-section (2) of section 8 of the Code. In the circumstances application under section 9 of the Code has been filed in Form-5, where in it was specifically mentioned that no reply has been filed by corporate debtor under sub-section (2) of section 8 of the Code, nor does any dispute have been raised. Once defects have been removed and the application under section 9 is complete and the required particulars have been given; the application is liable to be admitted. 21. That apart in compliance of sub-section (3)(b) of section 9 of the Code, the applicant has affirmed vide affidavit dated 14.11.2017 as under: "3. That I state that Respondent Company has not responded to the said notice dated 07.10.2017 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ..................................... .................. (20) "operational creditor" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred; (21) "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the payment 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;" 26. From the definition of "operational creditor" and "operational debt", it can be seen that the following persons can claim to be an "operational Creditor": a. The person who has claim in respect of provisions of goods (supplied) to the corporate debtor. b. Persons who have provided service to the corporate debtor, including those who are in employment. c. Central Govt., State Govt. and local authorities, who are entitled to claim debt in respect of dues arising under any law for time being in force. 27. It is thus seen that the unpaid applicant, who has rendered services to the corporate debtor, comes within the purview of 'Operational creditor'. 28. It is also perti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociates, Company Secretaries, G-41, Ground Floor, West Patel Nagar, New Delhi-110008 with email-id nazim@mnkassociates.com, is appointed as an Interim Resolution Professional. 33. In pursuance of Section 13 (2) of the Code, we direct that public announcement shall be made by the Interim Resolution Professional immediately (3 days as prescribed by the IBBI Regulations) with regard to admission of this application under Section 9 of the Insolvency & Bankruptcy Code, 2016. 34. We also declare moratorium in terms of Section 14 of the Code. The necessary consequences of imposing the moratorium flows from the provisions of Section 14(1)(a), (b), (c) & (d) of the Code. Thus, the following prohibitions are imposed: "(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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