TMI Blog2019 (1) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited for initiating corporate insolvency resolution process in the case of the corporate debtor Mahabir Techno Limited. - CP (IB) No.70/Chd/Hry/2018 - - - Dated:- 30-10-2018 - Mr R.P. Nagrath, Member (Judicial) And Mr. Pradeep R. Sethi, Member (Technical) For The Petitioner : Mr. Pradeep Nauharia, Advocate For The Respondent : None ORDER The petition in Form-5 is filed by M/s Ashapura Perfoclay Limited (hereinafter referred to as Operational Creditor ) under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code ) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for short the Rules) for initiating Corporate Insolvency Resolution Process (CIRP) in respect of Mahabir Techno Limited (hereinafter referred to as Corporate Debtor ). As per Master Data available at Annexure-3 of the petition, the corporate debtor was incorporated on 30.12.1996 and its CIN is U15144HR1996PLC035295. The registered address of the corporate debtor as per the master data is Umri, G.T. Road, Kurukshetra, Haryana. Therefore, the matter lies within the territorial jurisdiction of this Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been stated that payment received of ₹1,88,808/- out of payments received in June 2015 to September 2015 and payment receipt of ₹50,000/- on 20.09.2017 were adjusted against Invoice No.893 dated 23.06.2015 and thereby, an amount of ₹19,58,940/- remained outstanding on 20.09.2017 in respect of the three invoices. It is stated that the corporate debtor never disputed the amount payable but failed to make the payment of the outstanding debt. 4. It is further stated that the mandatory notices dated 20.12.2017 in Form No.3 and 4 along with unpaid invoices were sent by speed post on 21.12.2017. The copies of the demand notices are stated to be filed as Annexure-8 and 9 of the petition and the copy of postal receipt is stated to be at Annexure-10. It is further stated that the post office tracking report is at Annexure-11 and shows that the item delivery was attempted on 26.12.2017 and was refused. A copy of undelivered envelope containing the notices is stated to be filed as Annexure-12 of the petition. It is stated that at Annexure- 13, the affidavit of Sh. Sanjeev Khurana, Assistant General Manager of the operational creditor has been filed affirming that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or authorising the person who has executed the Power of Attorney in favour of the learned counsel for the respondent was not filed. The order dated 08.05.2018 notes that the learned counsel appearing on behalf of the respondent has been supplied with a copy of the entire paper book from one of the undelivered envelopes attached to the affidavit of service filed vide diary No.1245 dated 23.04.2018. 8. The reply to the petition was filed by the corporate debtor vide diary No.1968 dated 04.06.2018. It is stated that the corporate debtor placed the orders from time to time before the operational creditor for supplying the material, however, the operational creditor supplied the goods which were sub-standard and not consumable and the corporate debtor asked the operational creditor for the replacement of the goods and the operational creditor assured that it will be replaced as early as possible but did not come forward to take the goods and some material discrepancies arose between the operational creditor and the corporate debtor regarding the payments. It is stated that the corporate debtor was dealing with the Company in the name and style of Ashapura Volclay Limited and the chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor shall be struck off. The proceedings were thereupon adjourned to 18.10.2018 for arguments. 11. On 18.10.2018, none appeared for the respondent. The arguments of the learned counsel for the operational creditor were heard and it was submitted that the Interim Resolution Professional was not proposed in the petition filed. It was pleaded that the present petition is filed in accordance with the provisions of Section 9 of the Code and deserves to be admitted in accordance with Section 9(5) of the Code. 12. We have carefully considered the submissions of the learned counsel for the petitioner, the reply on behalf of the corporate debtor filed vide diary No.1968 dated 04.06.2018 and have also perused the records. As already discussed above, during the course of hearing on 13.09.2018, the learned counsel for the operational creditor pointed out that in the copy of reply supplied to him by the counsel of the corporate debtor, the name of Mr. Rakesh Kumar has been mentioned in the verification clause of the written statement and that the Court Officer also informed that in the original written statement, the verification bears the name of Mr. O.P. Khurana whereas in other two s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 payment 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. 17. In the present case, we find that the petition in Form-5 is complete and no defects have been pointed out by the corporate debtor in the reply filed. As already discussed above, the demand notice dated 20.12.2017 has been sent by the operational creditor and delivery is to be presumed since the envelope was returned undelivered. Further, as discussed above, the affidavit regarding no dispute has been filed. Moreover, the non-payment of the operational debt is clear from the submissions made by the operational creditor, inasmuch as ₹19,58,940/- bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for prohibiting all the following as provided in section 14(1) of the Code: ( 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; ( d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 22. It is further directed that the supply of essential goods or services to the corporate debtor, if continuing shall not be terminated or suspended or interrupted during moratorium period. The provisions of sub section (1) of section 14 of the Code shall however not apply to such transactions as may be not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the Code, including taking control and custody of the assets over which the Corporate Debtor has ownership rights recorded in the balance sheet of the Corporate Debtor etc. as provided in Section 18 (1) (f) of the Code. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the Corporate Debtor ; (iii) The Interim Resolution Professional shall strictly act in accordance with the Code, all the rules framed thereunder by the Board or the Central Government and in accordance with the Code of Conduct governing his profession and as an Insolvency Professional with high standards of ethics and moral; (iv) The Interim Resolution Professional shall cause a public announcement within three days as contemplated under Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 of the initiation of the Corporate Insolvency Resolution Process in terms of Section 13 (1) (b) of the Code read with Section 15 callin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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