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TMI Blog2019 (1) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... tra, Haryana. Therefore, the matter lies within the territorial jurisdiction of this Bench of the Tribunal. 2. The petition is signed by Sh. Sanjeev Khurana, Assistant General Manager of the operational creditor. His affidavit in support of the petition is at pages 11 to 13 of the petition and the certified copy of the Board Resolution dated 14.11.2017 of the operational creditor authorising Sh. Sanjeev Khurana, Assistant General Manager is at Annexure-15 of the petition. The petitioner-operational creditor Company decided by this resolution to initiate the appropriate proceedings against the respondentcorporate debtor under the Code. 3. It is stated that the operational creditor is engaged in the quarrying of stone, sand and clay etc. at survey No.167, Village Ler, near Bhujodi, Taluka Bhuj-Kutch, Gujarat and that the corporate debtor placed purchase orders on the operational creditor from time to time for supply of Bleaching Earth and the material was duly supplied against the same by the operational creditor to the corporate debtor and the material was duly received by the corporate debtor and that the corporate debtor was under legal obligation to make payment within the stip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor has been filed affirming that the corporate debtor has neither disputed the existence of or amount of unpaid operational debt within the period specified by law nor provided the details of the pendency of the suit or arbitration proceedings in relation to any such dispute filed and further, there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt. 5. At Annexure-16 of the petition, the operational creditor has placed the postal receipt for sending the copy of the petition to the corporate debtor on 23.02.2018 by speed post; tracking report showing 'item delivery attempted insufficient address' on 05.03.2018 and photocopy of the envelope returned undelivered as at Annexure-17. The exact report on the envelope at page 103-D of the paper book is that the owner did not meet and factory was lying closed. The report is dated 01.03.2018. 6. By order dated 23.03.2018, notice of the petition to the corporate debtor to show cause as to why the petition be not admitted was directed to be issued for 08.05.2018. It was also observed as under:- "...It is further submitted that copy of the petition and entire paper book was sent by Speed Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Volclay Limited and the change of name of directors of the operational creditor was not communicated to the corporate debtor. It is stated that the corporate debtor had supplied material in exchange/replacement of sub-standard material and there was an oral agreement that the three invoices during June 2015 to September 2015 will be adjusted in the future course of business. It is submitted that the corporate debtor always disputed the amount/invoices on account of supply of substandard material and that the corporate debtor is always ready and willing to settle the dispute with the operational creditor by mutual settlement or through arbitration. 9. The rejoinder on behalf of the operational creditor was filed vide diary No.2469 dated 13.07.2018 stating that the present petition is filed in accordance with the provisions of Section 9 of the Code and that the corporate debtor had never disputed their liability; the corporate debtor has not made any specific averment and nothing has been placed by them on record in support of their objections; without prejudice, it is submitted that on the one hand the corporate debtor is contending in the reply that no amount was due against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas in other two sets of the paper book - one for the Member(Technical) and the other for office record - the name in the verification clause is that of Mr. Rakesh Kumar and the corporate debtor was granted an opportunity to rectify the mistake at least five days before the next date of 18.10.2018, failing which the defence of the corporate debtor shall be struck off. The mistake was not rectified and none appeared for the corporate debtor on 18.10.2018. The defence of the corporate debtor is therefore liable to be struck off. However, in the interest of justice this is not being done and the reply on behalf of the corporate debtor filed vide diary No.1968 dated 04.06.2018 is being taken into consideration while deciding the present petition. 13. Section 9(1) of the Code requires filing of the petition for initiating CIRP after the expiry of 10 days from the date of delivery of the notice demanding payment under Section 8(1) of the Code. The condition is satisfied in the present case since the demand notice as per tracking report (Annexure-11 of the petition) is to be taken as delivered on 26.12.2017 when the item delivery was attempted and refused. The instant petition was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t three bills/invoices besides interest is shown to be due from the corporate debtor to the operational creditor. 18. With regard to payment of interest the petitioner has claimed instant @ 24% per annum. There is however a clause in the terms and conditions of the invoices that the delayed payment will attract interest @ 2% per 30 days for the period starting from the due date. In any case the interest was not calculated over the outstanding due in the ledger book of the petitioner. Being a commercial transaction we permit the interest @12% per annum w.e.f. 01.10.2017 till payment. If the petitioner still claims a higher rate of interest it may avail of the remedy before the Civil Court. 19. The main contention raised in the reply filed vide diary No.1968 dated 04.06.2018 by the corporate debtor is that it has always disputed the amount/invoices on account of supply of sub-standard material. However, as pointed out by the operational creditor, the corporate debtor has not made any specific averment and nothing has been placed by them on record in support of their objection. Moreover, the learned counsel for the operational creditor has pointed out that without prejudice, the cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial sector regulator and to a surety in a contract of guarantee to the corporate debtor. 23. The order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under subsection (1) of section 31 or pass an order for liquidation of corporate debtor under section 33 as the case may be. 24. In the present case, the operational creditor has chosen not to propose a Resolution Professional, as an Interim Resolution Professional (IRP). Vide letter file No.IBBI/IP/EMP/2018/01 dated 28.06.2018 of the Insolvency and Bankruptcy Board of India, it is stated that in cases where the operational creditor has made an application for CIRP and has not proposed an IRP, the appointment of IRP can be made from the bench wise list of Insolvency Professionals who have expressed interest to become IRP. The panel is stated to be valid for six months from July 2018 to December 2018. Annexure A-4 of the letter dated 28.06.2018 is the panel of Insolvency Professionals (IP) relating to Chandigarh Bench of the Tribunal. Sr.No.20 thereof relates to Mr. Vinod Kumar Mahajan with IP Registratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) It is hereby directed that the 'Corporate Debtor', its Directors, personnel and the persons associated with the management shall extend all cooperation to the Interim Resolution Professional in managing the affairs of the 'Corporate Debtor' as a going concern and extend all cooperation in accessing books and records as well as assets of the 'Corporate Debtor'; (vi) The Interim Resolution Professional shall after collation of all the claims received against the corporate debtor and the determination of the financial position of the corporate debtor constitute a committee of creditors and shall file a report, certifying constitution of the committee to this Tribunal on or before the expiry of thirty days from the date of his appointment , and shall convene first meeting of the committee within seven days of filing the report of constitution of the committee. (vii) The Interim Resolution Professional is directed to send regular progress report to this Tribunal every fortnight. A copy of this order be communicated to both the parties. The learned counsel for the petitioner shall deliver copy of this order to the Interim Resolution Professional forthwith. The Registry is also dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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