TMI Blog2019 (1) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised are rejected. In the present case, no averments have made before us that the application under Section 9(2) is not complete. We have gone through the contents of the application and find the same to be complete. As discussed above, there is an unpaid operational debt amounting to ₹13,04,521/- comprising of outstanding amount of invoices of ₹11,29,565/- and interest at 1.5% per month up to 02.01.2018 of ₹1,74,956/- (Interest @ 1.5% per month is provided for in Clause 4 of the Security Services Agreement dated 04.04.2016). In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition for initiation of the CIRP process in the case of the Corporate Debtor M/s Quickdel Logistics Pvt. Ltd. is admitted - Moratorium declared. - CP (IB) No. 67/Chd/Hry/2018 - - - Dated:- 7-1-2019 - Mr R. P. Nagrath, Member (Judicial) And Mr. Pradeep R. Sethi, Member (Technical) For The Operational Creditor : Mr. Anuj Dewan, Advocate And Ms. Palak Rohmetra, Advocate For The Corporate Debtor : Mr. Aman Jha, Advocate And Ms. Sapna Khurana, Advocate JUDGEMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor held on 18.12.2017 authorizing Shri Raj Kumar is at page 27 of the petition. Shri Raj Kumar has also filed an affidavit dated 26.02.2018 verifying the contents of Form No.5 and also stating that the Operational Creditor has not received any reply to the notice given to the Corporate Debtor relating to a dispute of the unpaid operational debt (page 23A of the petition). In part 3 of Form 5, the Operational Creditor has not proposed any Interim Resolution Professional(IRP). 4. Notice of the petition was directed to be issued to the Corporate Debtor to show cause as to why the petition be not admitted. When the petition was listed on 02.05.2018, the service of respondent was directed to be effected dasti . Affidavit of service was filed vide Diary No. 1627 dated 16.05.2018. 5. The respondent has contested this petition and filed reply by Diary No. 2451 dated 12.07.2018. It is stated that the Corporate Debtor never received any Demand Notice under the Code and that the Corporate Debtor had relocated to the new address i.e. 1101, 11Floor, Spaze Hightech Park Tower A-2, Sohna Road, Sector 49, Gurugram and that this address is duly refl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with respect to quality of service or any claim or credit note for alleged deficiency in service by the Corporate Debtor. It is stated that the Corporate Debtor has relocated to the new address on 18.02.2018 and therefore, the service of the Demand notice made at the erstwhile address was valid. 9. They stated that the Corporate Debtor made a feeble attempt to create a fictitious dispute by going way back to July, 2016 and that the same was a mere operational issue which was sorted between the parties and the payment pertaining to the said period i.e. July and August was cleared without any dispute. It is submitted that the FIR filed by the Economic Office Wing of Delhi Police dated 23.06.2017 has no relevance since the Corporate Debtor has not named the Operational Creditor in this FIR and that the allegation in the FIR was that the erstwhile management has misappropriated the funds received from Jasper and of the Corporate Debtor itself. Reference has been made to clause 4 of the agreement dealing with the payment terms and it is submitted that the aforesaid clause also provides for communicating dispute with respect to an invoice and that no dispute was raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurity service agreement dated 04.04.2016 and it was argued that the Corporate Debtor did not fulfil its responsibility in respect of statutory liabilities and compliances including ESI, PF, bonus, MH, LWF etc. in respect of personnel deployed for security services. Reference was made to para 6 of the demand notice dated 19.09.2017 and it was argued that the payments received against the invoices shown therein were less than the receipts from the Corporate Debtor between 15.10.2016 to 15.11.2017 shown in the bank certificate dated 20.12.2017 filed by the Operational Creditor at Annexure-7 of the petition. It was also argued that there was a difference in the outstanding amount of invoice No.KOLC/001354/1617 shown in part 4 of Form No.5 and para No.6 of the demand notice (supra). 12. We have carefully considered the submissions of the learned counsel for the Operational Creditor and Corporate Debtor and have also perused the record. 13. The first issue for consideration is whether the demand notice in form No.3 dated 19.09.2017 was properly served. This demand notice was sent at the address as per master data at page 101 of the petition in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 16. The learned counsel for the Corporate Debtor has argued that the Corporate Debtor has paid total sum of ₹58,96,992/- during the period of contract to the Operational Creditor and as per the books of accounts, a total sum of ₹2,50,000/- has to be recovered from the Operational Creditor after adjustment of all debit notes and the copy of the ledger is at Annexure D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 15.11.2016 and 21.12.2016 and therefore, the Corporate Debtor did not withhold the payments for the months in which the alleged incident occurred and that the Corporate Debtor did not convey any loss to the Operational Creditor, let alone a loss as huge as ₹11,00,000/- as claimed in the reply without any supporting document. It is therefore, submitted by the learned counsel for the Operational Creditor that this was merely an operational issue which stood amicably settled between the parties. 18. The learned counsel for the Operational Creditor has also referred to clause 4 of the security services agreement dated 04.04.2016 (Annexure No.4 of the petition) and has pleaded that the agreement itself provided for raising dispute against the invoice raised by the Operational Creditor and clauses 13(5) and 13(7) of the agreement are also relevant. We find that in view of the payment of the invoices for July, 2016 and August, 2016, the issue raised in the e-mails dated 10.08.2016 and 23.08.2016 were amicably settled. Further, we may add that at para (III) of the reply filed by Diary No.2451 dated 12.07.2018, it was inter alia stated by the Corporate Debtor t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble of ₹2,50,000/- as on 19.04.2017 has been discussed and negated above. Therefore, the averment in the email dated 20.12.2016 ( supra) that payments since August, 2016 are still pending appears to be correct. Moreover, no evidence of the debit note of e-commerce vendors to the tune of ₹38.00 crores has been filed. Therefore, the plea raised by the Corporate Debtor cannot be accepted. 21. In the reply filed vide Diary No. 2451 dated 12.07.2018, the Corporate Debtor has submitted that there are several instances of violation of the security services agreement dated 04.04.2016. However, no evidence in this regard have been furnished. Therefore, the contention raised is rejected. 22. In the reply (supra) , the Corporate Debtor has referred to FIR lodged with the Economic Offences Wing, Delhi. We find that the operational creditor is correct in stating that the FIR has no relevance since the Corporate Debtor has not named the Operational Creditor in this FIR and secondly, the allegations in the FIR are that the erstwhile management of the Corporate Debtor misappropriated the funds received from Jasper and of the Corporate Debtor itself. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NEFT 100000 26. The details of the invoices against which payment is adjusted as given in para No.6 of the demand notice (supra) are as follows:- Invoice No. Invoice amount (Rs.) Payment received (Rs.) Due amount (Rs.) Date of invoice Date of payment KOLCI/00 1089/1617 2,91,249 2,62,216 29,033 September, 2016 4 February, 2017 KOLCI/00 1354/1617 2,91,249 1,53,061 1,38,188 October, 2016 30 March, 2017 KOLCI/00 1532/1617 2,87,619 2,68,146 19,473 November, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code are as follows:- ( 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 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 subsection (4), if any. 30. In the present case, no averments have made before us that the application under Section 9(2) is not complete. We have gone through the contents of the application and find the same to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surety in a contract of guarantee to a corporate debtor. 34. 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 sub-section (1) of Section 31 or pass an order for liquidation of corporate debtor under Section 33 as the case may be. 35. In the present case, the operational creditor has chosen not to propose a Resolution Professional to be appointed as the Interim Resolution Professional (IRP). The operational creditor is not obliged to propose the name of Resolution Professional to be appointed as such. Section 16(3)(a) of the Code says that where the application for corporate insolvency resolution process is made by an operational creditor and a) no proposal for an interim resolution professional is made, the Adjudicating Authority shall make a reference to the Board for the recommendation of an insolvency professional who may act as an interim resolution professional; b) x x x x x Sub-section (4) of Section 16 says that the Board shall, within ten d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 calling for the submission of claims against Corporate Debtor ; v) 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 t ..... 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