TMI Blog2019 (10) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... t goes beyond doubt that the Applicant is entitled to claim its dues, which remain uncontroverted by the Corporate Debtor, establishing the default in payment of the operational debt beyond doubt. In the light of above facts and records the present application is admitted. Application admitted - moratorium declared. - COMPANY PETITION No. IB-82/PB/2018 - - - Dated:- 24-7-2019 - DR DEEPTI MUKESH, MEMBER (JUDICIAL) AND SH PRADEEP R. SETHI, MEMBER (TECHNICAL) For The Applicant : Shiv Kumar Suri, Adv. Shikhil Suri, Adv. and Ms. Shilpa Saini, Adv. For The Respondent : Mr Vipul Srivastava, Adv. and Rajwinder Vats, Adv. JUDGMENT DR DEEPTI MUKESH, MEMBER (J) The Present Application is filed under section 9 of Insolvency and Bankruptcy Code, 2016 (for brevity IBC 2016 ) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) by Tricolite Electrical Industries Limited (for brevity Applicant ) with a prayer to initiate the Corporate Insolvency process against HBN Homes Colonisers Private Limited (for brevity Corporate Debtor ). 2. The Applicant, Tricolite Electrical Industri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SVM/12-13/0467 11.01.2013 16,10,537/- 9 SI/M/12-13/0468 11.01.2013 18,70,473/- 10 SI/M/12-13/0469 11.01.2013 16,94,122/- 11 SI/M/13-14/0003 10.04.2013 5,40,687/- 12 SI/M/13-14/0004 10.04.2013 12,378/- 13 SI/M/13-14/0048 07.05.2013 2,55,859/- 14 SI/M/13-14/0099 01.06.2013 12,43,486/- 15 SI/M/13-14/0100 01.06.2013 54,817/- 16 SI/M/13-14/018 26.07.2013 17,30,000/- 2,86,64,271/- Add: Amount transferred to Mitelite Electric Company dated 31.03.2013 11.06.2013. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous objections to the application. The objection of the respondent is that firstly 4 invoices were admittedly never delivered to the respondent during the subsistence of the agreement, while remaining 12 invoices were duly received. Secondly, the claimed amount of ₹ 34,60,240/- was transferred to the account of another company namely Mitilte Electric Company which is a different entity, on behalf of the respondent and thus the applicant is entitled to recover the same from the respondent. Thirdly, it is contended that the notice under section 8 of I B Code dated 25.10.2017 and the notice dated 29.05.2015, sent on behalf of the applicant contain different figures in respect of the amount alleged to have been transferred to the other company i.e. M/s Mitilite Electric Company is different. Fourthly, the applicant cannot be allowed to raise a claim on behalf of third company, which itself has not raised any claim. 11. A rejoinder to the reply/written statement has been filed by the operational creditor reiterating the submissions made in the application and controverting the assertions in the reply/written statement. The applicant has submitted that the invoices has been de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) there is no repayment 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. (ii) 9(6) 14. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident form the record that the application has been filed on the proforma prescribed under insolvency and bankruptcy (application to adjudicating authority) rules, 2016. We are satisfied that a default has occurred and the application under sub-section 2 of section 9 is complete. The statutory notice under section 8 of the Code was served on the Corporate Debtor as discussed above and no reply was received within the time period as given in Section 8(2) of the Code. 15. The contentions of the corporate debtor that the 4 invoices were admittedly never delivered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and noted that the amount claimed to be in default is ₹ 95,01,856/- and the default occurred from 22.08.2015 and application is filed on 24.01.2018 hence the debt is not time barred and the application is filed within the period of limitation. 21. The present application is complete after hearing learned counsel for both the parties and perusing the documents on records it goes beyond doubt that the Applicant is entitled to claim its dues, which remain uncontroverted by the Corporate Debtor, establishing the default in payment of the operational debt beyond doubt. In the light of above facts and records the present application is admitted. 22. Since the Applicant has not named the Insolvency Resolution Professional, this Tribunal appoints Mr. Rakesh Kumar Jain, with registration number IBBI/IPA-001/IP-P01297/2018-19/12068 (email - Rakeshjainca@rediffmai1.com.Mobile No. 9811455641 as the Interim Resolution Professional subject to the condition that no disciplinary proceedings are pending against such an IRP named who may act as an IRP in relation to the CIRP of the Respondent and specific consent is filed in Form 2 of Insolvency and Bankruptcy Board of India (Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consultation with any financial sector regulator and the surety in a contract of guarantee to a Corporate Debtor. (c) The order of moratorium shall have effect from the date of this order till the complete of the corporate insolvency process as per Sub-section (4) of section 14 of the Code. 25. The Interim Resolution Professional shall perform all his functions contemplated, inter alia, by Sections 15,17,18,19,20 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code , Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the day to day affairs of the Corporate Debtor . In case there is any violation, the Interim Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Profes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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