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TMI Blog2020 (1) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Petition are as follows: a. The operational creditor has its operations since June 2000 in the state of Andhra Pradesh (Now Telangana) and is engaged in the financial services and corporate Law Matters. The operational creditor is in the line of financial consultancy and corporate advisory for capital structuring and settlement of debts through OTS as well as contributing for preparation of Resolution Plans under CIRP and filing documents under Corporate Insolvency and Bankruptcy Code, 2016. b. It is averred that operational creditor was approached by the corporate debtor in the month of March, 2018. There was an understanding between the operational creditor and corporate debtor for structuring and mobilizing investments for the settlement of OTS with the sole financial creditor i.e SBI. c. It is averred that the corporate debtor failed to provide any securities for the purpose of availing the investments/loans before 30th April, 2018 which is required for mobilization of funds to complete the OTS on time. d. It is averred that SBI, initiated the auction process under SARFAESI Act on May 1st, 2018. Then the corporate debtor entered into MOU on 2nd May, 2018 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts, the petitioner failed to provide the services to the respondent, on account of which the respondent failed to meet its commitments to SBI, as it could not honour OTS on more than one occasion and that the respondent was solely dependent on the petitioner for meeting its commitments to SBI. d. It is averred that on May 2018 on the advice of the petitioner, the respondent moved an application U/s.10 before this Tribunal for initiating CIRP which was later withdrawn by the respondent on the advice of the petitioner, since SBI offered 2nd chance to the respondent for settling dues through OTS. e. It is averred that respondent called upon the petitioner to return the amount of Rs. 121acs which is already paid towards advance owing to non-fulfilment of the terms of agreement dated March 27, 2018. f. It is averred that the petitioner raised an invoice dated September 11, 2018 for a sum of Rs. 12,98,000/- (Rs. 11 lacs plus GST of Rs. 1,98,000/-) which was received by the Respondent by speed post on December 31,2018. g. It is averred that if the petitioner raised the invoice on September 11, 2018 it would be reflected in the GST Returns filed by the Petitioner for the month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent did not pay Rs. 1,20,00,000/- to the petitioner and there is no cash transaction. The total transferred amount was Rs. 9,00,000/- through bank transactions to the petitioner on 29th September 2018 as second OTS availed had an obligation to be met by the corporate debtor who sought the help of the operational creditor for 10.60 Lacs which was transferred from IDBI Bank to the Account of the corporate debtor. Therefore the financial obligation was already there on the Respondent. c. It is averred that the respondent despite repeated requests to provide security for the loan availed was not provided as per the agreement in clause 3 of Exhibit-A. The OTS availed for the second time after withdrawal of Section 10 application on 6th September 2018 was also in haste as the investors were insisting for the security of assets or at least shares. d. It is averred that financial transaction is not connected to the operational liability and Respondent repeatedly tries to state that the operational liability is not tenable. There is an operational liability by the Respondent as the obligation to pay Rs. 11 Iacs is exclusive and is mandated as per legal agreement and also acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition under section 10 of the Insolvency and Bankruptcy Code, 2016 ('I&B Code' for brevity) on behalf of the corporate debtor. The learned counsel would contend that there is absolutely no dispute that the operational creditor extended services to the corporate debtor in filing the application under section 10 of the I&B Code before the NCLT, Hyderabad on behalf of the corporate debtor. In terms of the agreement/ MOU, the corporate debtor was liable to pay the agreed money to the operational creditor for the services rendered. The operational creditor engaged an associate, Shri Satish kumar, a Practising Company Secretary for initiating the process on behalf of the corporate debtor under section 10 of the I&B Code before the NCLT. 6. Learned counsel for the operational creditor further contended that the application filed on behalf of the corporate debtor was numbered as CP(IB) No.301/10/HDB/2018. The learned counsel would contend that State Bank of India, the sole financial creditor had agreed to consider second OTS proposal to be filed on behalf of the corporate debtor provided the corporate debtor to withdraw the application filed under section 10 of the I&B Code. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional creditor, an application under section 10 of the I&B Code was filed. In the meantime, State Bank of India again agreed to receive second OTS proposal subject to the condition that the corporate debtor to withdraw the application filed under section 10 of the I&B Code. Thus, the application under section 10 of the I&B Code was withdrawn. 9. The learned counsel for the corporate debtor contended that the operational creditor failed to provide services to the corporate debtor as per the terms of agreement dated 27.03.2018 and there was payment to the operational creditor, who subsequently repaid, except Rs. 1,40,000/-. The learned counsel contended that still the operational creditor is liable to pay Rs. 1,40,000/- to the corporate debtor. 10. It is the specific case of the operational creditor that the corporate debtor entered into agreement dated 02.05.2018, for rendering NCLT services. Surprisingly, the corporate debtor is not making any reference to this agreement, which is the basis for the operational creditor to contend that the corporate debtor committed default of operational debt. A sum of Rs. 11 Iacs was agreed to be paid to the operational creditor for rendering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under Securitization and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002 (54 of 2002); the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate Debtor; (b) That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (c) That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (d) That the order of moratorium shall have effect from 06.01.2020 till the completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under Sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, whichever is earlier. (e) That the public annou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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