TMI Blog2020 (1) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate debtor. Petition admitted - moratorium declared. - C.P. (IB) NO. 1478 (PB) OF 2019 - - - Dated:- 30-9-2019 - Chief Justice M.M. Kumar, President And Ms. Sumita Purkayastha, Technical Member Abhishek Sharma and Ms. Anisha Mahajan, Advs. for the Petitioner. Gaurav Srivastava for the Respondent. ORDER M.M. Kumar, The Petitioner claiming to be an operational creditor has filed the instant Petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') with a prayer to trigger Corporate Insolvency Resolution Process in respect of respondent Direct News Private Limited (for brevity the 'corporate debtor'). It is appropriate to mention that the 'operational creditor' is a company incorporated under the provisions of the Companies Act, 1956. 2. The Corporate Debtor - Direct News Private Limited was incorporated on 22.12.2006 initially under the name INX News Private Limited as per the provisions of the Companies Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on record the balance sheets, bank statements, emails and other related documents under which it claims the operational debt to become due. 8. It s further submitted by the petitioner-operational creditor that it had served a demand notice under Section 8 of the Code to the respondent-corporate debtor dated 28.05.2019 which is in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016. True Copies of the demand notice along with the proof of dispatch and delivery have been placed on record [Annexures-P-14, P-15 and P-16(Colly)]. It is further submitted by the petitioner that no reply was received on behalf of the respondent- corporate debtor to the said notice. 9. A reply to the petition has been filed by the respondent-corporate debtor and it is vehemently denied that there is any debt due to the petitioner-operational creditor. The respondent has raised a defence that the debt claimed does not come within the definition of 'operational debt' and therefore the petitioner cannot claim itself to be an 'operational creditor'. Further, the respondent has affirmed that before the instant petition was filed there has been comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions that the the lessor that an entity rents out space from is an operational creditor to whom the entity owes monthly rent and in view of the aforesaid the petitioner is an 'Operational Creditor' within the meaning of Section 5(21) of the Code. 13. A perusal of the email dated 01.05.2019 would show that the respondent- corporate debtor expressed its intention to vacate the rented premises within 2-3 months. It further shows that a request was made by the respondent to adjust the cheque amount of March, 2019 from the security deposit held by the petitioner- operational creditor amounting to ₹ 1.25 Crores and to hold back the encashment of the cheques to adjust the post-dated rental cheques for the months of April, May and June, 2019. It was for the aforesaid reason that the cheque for April, 2019 was requested to not be encashed. The assurance given in the said letter is to vacate the premises by July/August, 2019 and the remaining cheques from April, 2019 onwards were to be adjusted and the rest of the adjustment was to be made in terms of the agreement at the time of vacating the premises. 14. However, the aforesaid email has been controverted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent were dishonoured in April which would lead to an inference that there is an acknowledgement of debt as has been held in the Judgment rendered by the Hon'ble Appellate Tribunal Sudhi Suchdev v. APPL Industries Ltd. [2019] 102 taxmann.com 199 (NCL - AT) where it has been held that: The pendency of the case under Section 138/441 of the Negotiable Instruments Act, 1881, even if accepted as recovery proceeding, it cannot be held to be a dispute pending before a Court of law. Thereby we hold that the pendency of the case under Section 138/441 of Negotiable Instruments Act, 1881 actually amounts to admission of debt and not an existence of dispute. 18. Therefore, the default stands established and there is no reason to deny the admission of the petition. It is needless to say that if any payment has been made that would be looked into by the Resolution Professional. In view of the above this Tribunal is inclined to admit this petition and accordingly initiate the process of CIRP of the Respondent-Corporate debtor. The Petitioner has proposed the name of the insolvency resolution professional Mr. Abhishek Anand but he has not filed his written communication as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
