TMI Blog2019 (8) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... ut any supporting evidence and cannot be taken as a pre-existing dispute for rejection of section 9 Petition. The application made by the Operational Creditor is complete in all respects as required by law, and it clearly shows that the operational debt is due and has not been paid. Thus it is clear that petition filed U/S 9 of the Code deserves to be admitted - petition admitted - moratorium declared. - CP 495 (IB)/MB/2018 - - - Dated:- 16-7-2019 - Mr. V.P. Singh, Member (Judicial) And Mr. Ravikumar Duraisamy, Member (Technical) For The Petitioner : Adv. Deep Shah, Adv. Nikita Shah For The Respondent : Adv. Disha Ponda, Adv. Nishitha Nambiar, Adv. Abdullah Qureshi ORDER 1. It is a Company Petition filed under section 9 of Insolvency Bankruptcy Code, 2016 ( I B Code ) by Shine Shine Enterprises, the Petitioner/Operational Creditor against the Canaan Engineering Private Limited, the Respondent/Corporate Debtor for initiation of Corporate Insolvency Resolution Process ( CIRP ) on the ground that the Corporate Debtor has defaulted in payment of ₹ 25,54,786.91 against various invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r failed to make the payment to the Operational Creditor even after the receipt of the demand notice dated 12.01.2018. 8. The Corporate Debtor in its Affidavit in Reply dated 06.11.2018 has submitted that the present petition is liable to be dismissed as there is an existing dispute between the parties and by the action of purchase manager along with his wife, the petitioner hereinabove, has caused loss to the company and its business. The applicant has with an ulterior motive, to extract further amount, has now filed the present petition. The Corporate Debtor further states that they have already served a legal notice upon the proprietor of the Operational Creditor and the purchase manager Mr Shibu Nadar on 18.09.2017. 9. The Corporate Debtor in its Legal Notice dated 18.09.2017 has submitted that, the Purchase Manger along with the Petitioner with an ulterior motive, in order to defraud the Company established a proprietary concern to obtain orders and supply the materials to the Corporate Debtor, only to sell at much higher prices, as compared to the prevalent market price of the materials, at relevant point of time, of the other vendors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the outstanding unpaid debt of ₹ 18,51,451/-. The letter further also mentions a schedule of payment in instalments. This letter would be a sufficient acknowledgement of the debt by the Corporate Debtor and further clears that the Petition is filled within the limitation period. 17. The Operational Creditor sent demand notice dated 12.01.2018 to the Corporate Debtor. The said notice was delivered on 13.01.2018 to the Corporate Debtor, and Corporate Debtor did not raise any dispute. 18. The Operational Creditor further in his written submission submits that, the withdrawal of earlier petition on 06.09.2017 was with the liberty to file fresh proceeding and the Corporate Debtor knew it very well that Operational Creditor will file fresh proceeding against them and just to take the defence, Corporate Debtor tried to create dispute which is nothing but an afterthought on the part of Corporate Debtor for the sake of creating dispute. 19. The Hon ble Supreme Court in the matter of Mobilox Innovations Private Limited vs Kirusa Software Private Limited (CIVIL APPEAL NO. 9405 OF 2017) has, inter alia s Para 24 of the said judgment, held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 21. The Corporate Debtor had sent a Legal Notice to Operational Creditor on 18.09.2017and tried to attempt to prove the collusion between its ex-employee and Operational Creditor. However, this Legal notice by the Corporate Debtor is sent after the first petition was withdrawn on 06.09.2017 under section 9 before this Tribunal. 22. The Corporate Debtor has not raised any dispute regarding the supply of goods neither has it stated that the debt had been repaid. The only contention of the Corporate Debtor is that the Operational Creditor is a related party of an ex-employee of the Corporate Debtor and that this fact was not disclosed to the management of the Corporate Debtor and the Operational Creditor has taken advantage by charging higher prices of the goods than the market value. It is pertinent to note that Mr. Shibu Nadar left the employment of the Corporate Debtor in November 2014. Since then, the Corporate Debtor has not rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or where such property is occupied by or in possession of the corporate debtor. II. It is further made clear that: a. The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period. b. That the provisions of sub-section (1) of Section 14 of IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. c. That the order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 of IBC or passes an order for liquidation of corporate debtor under section 33 of IBC, as the case may be. d. That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of IBC. e. That this Bench at this moment appoints Mr Anish Gupta, Registration No. IBBI/IAP-002/IP-N00285/2017-18/10843, as Interim Resolution Professi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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