TMI Blog2019 (7) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. - Under Adjudication is CP/345/2018 that has been filed by the Operational Creditor under Section 9 of the Insolvency Bankruptcy Code, 2016 (in short, I B Code, 2016 ) r/w Rule 6 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The prayer made is to admit the Application, to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, to declare moratorium and to appoint Interim Resolution Professional (IRP). 2. Heard the representative for the Operational Creditor, Counsel for the Corporate Debtor and perused the pleadings including the documents placed on file. 3. The Operational Creditor has claimed an amount of ₹ 1,83,59,520/- as principal amount along with interest @ 21% interest per annum till 31.12.2017, totalling ₹ 2,82,99,314/- as outstanding against the Corporate Debtor, which the Corporate Debtor has failed to pay. 4. The brief facts of the case are that the Operational Creditor is engaged in the business of Marketing of Textiles Machinery and the Corporate Debtor is engaged in the business of Manufacturing of Textile Machinery and Access ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alt with directly by the Agent in writing who will take care of successful conclusion of the sales in the mutual interest, by using any appropriate influence in order to obtain punctually in payments by the customers. In view of the Agreement, the Operational Creditor claims that it has rendered its services as agreed. between both the parties. 7. It is pertinent to note that on 06.06.2014 the said Agency Agreement dated 01.01.2013 was revoked with stipulation that the termination of the relationship will come into effect after three months reckoning from communication dated 06.06.2014. In other words, the relationship between Corporate Debtor and Operational Creditor remain continued till 05.09.2014. 8. The details of the services rendered by the Operational Creditor to the Corporate Debtor and the commission became due by the Corporate Debtor are given in the Tabular form which is placed at page 16 of the typed set filed with the Application which reflects that the balance amount of ₹ 1,83,59,520/- is due to the Operational Creditor. The Operational Creditor has sent the Legal Notice dated 04.06.2015 to the Corporate Debtor claiming ₹ 1,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank of India is placed at page 77 of the typed set filed with the Application. 11. The Counsel for the Corporate Debtor has filed Reply stating therein that the claim of the Operational Creditor is untenable on account being contrary to the terms of the Agency Agreement entered into between the Corporate Debtor and the Operational Creditor. It has specifically been stated that the Agreement expressly provides that the Operational Creditor is entitled to commission only after a particular business procured is completed in form of full payment and installation, accordingly the Operational Creditor is not entitled to payment of any commission, unless and until the full payment from the customers are received against the orders procured by the Operational Creditor. 12. The second objection that has been raised by the Counsel for the Corporate Debtor is that the Application is barred by limitation. Rebutting the objection raised by the Counsel for the Corporate Debtor, the representative for the Operational Creditor has submitted that in reply to the Legal Notice of the Operational Creditor dated 04.06.2015, the Corporate Debtor on 02.07.2015 has acknowle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Counsel for the Corporate Debtor is contrary to the detail given in the communication dated 02.07.2015. In support of the submissions that are made by the Counsel for the Corporate Debtor, no documentary evidence is placed on record. Therefore, the defence is purely spurious and stands rejected. 16. The Counsel for the Corporate Debtor has submitted that there is no Invoice(s) placed on record for demanding the outstanding debt and without such demand as to how the Corporate Debtor can make payment to the Operational Creditor. The Counsel for the Corporate Debtor has submitted that the account statement filed shows that it is a bad debt and it refers to difficulty in recovering the debt from the party concerned, and further the Operational Creditor has not shown any amount due from the Corporate Debtor, and therefore, the Applicant cannot be an Operational Creditor . Repudiating the submissions made by the Counsel for the Corporate Debtor, representative for the Operational Creditor has referred to the Audited Financial Statement of the Corporate Debtor for the year ending 31.03.2017 which clearly establishes the fact that commission is shown as an expenses ite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 21. The supply of essential goods or services of the Corporate Debtor shall not be terminated or suspended or interrupted during moratorium period. The provisions of Sub-section (1) of Section 14 shall not apply to such transactions, as notified by the Central Government. 22. The Operational Creditor has not proposed the name of IRP, therefore, Mr. Gopalsamy Ganesh Babu is appointed as IRP, whose name has been in the Panel of Insolvency Professionals recommended by the IBBI, there is no disciplinary proceedings pending against the IRP. The IRP is directed to take charge of the Respondent Corporate Debtor s management immediately. He is also directed to cause public announcement as prescribed under Section 15 of the I B Code, 2016 within three days from the date the copy of this order is received, and call for submissions of claim in the manner as prescribed. 23. The IRP shall comply with the provisions of Sections 13(2), 15, 17 18 of the I B Code. The directors of the Corporate Debtor, its promoters or any person a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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