TMI Blog2019 (10) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... r devoid of merits. If such kind of mechanism adopted by the corporate debtor is allowed in the IBC proceedings then none of the Operational Creditors would ever be able to initiate CIRP and thus, the very object of the IB Code would be defeated. That application filed under section 7 of IBC is complete in all respects and complies with the requirements of IB Code read with relevant regulations and the debt is not barred by limitation - Application admitted - moratorium declared. - CP(IB) NO. 1104/KB/2018 - - - Dated:- 18-10-2019 - Madan B. Gosavi, Judicial Member And Virendra Kumar Gupta, Technical Member Jay Saha, Adv. and S. Shah, Adv. for the Applicant. A. Mitra, Adv., Satadeep Bhattacharya, Adv. and Debayan Sen, Adv. for the Respondent. ORDER Virendra Kumar Gupta, This application has been filed under Sec.9 of the Insolvency Bankruptcy Code, 2016 by the operational creditor, viz., Ranjan Kumar Sovasaria M/s. Hanusita Sons for initiation of corporate insolvency resolution process against the corporate debtor, viz., Apeejay Tea Limited. The amount of default has been claimed at ₹ 48,71,688/-. The defaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Ld. Counsel thereafter, contended that dispute was not with the operational creditor and referred to para 184 of reply of corporate debtor wherein no dispute regarding quantum and quality had been mentioned. It was also contended that the purchase orders were issued even after removal of the said employee of the corporate debtor and referred to pages 21 to 55 of the petition which contained purchase orders issued after 3/8/2016. It was also contended payment was also made after removal of such person. According to Ld. Counsel there was no dispute regarding claim of operational creditor in terms of provision of Sec.5(6) of Insolvency Bankruptcy Code, 2016. 6. Ld. Counsel further emphasised on the fact that dispute was to be segregate as bona fide or malafide and in the present case the reliefs sought in the suit were of the nature of damages which was not a ground to hold that there existed a dispute prior to filing of application under Sec.9 of Insolvency Bankruptcy Code, 2016. For this proposition, Ld. Counsel relied on the decision of the Hon'ble Supreme Court in the case of Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd. [2017] 85 taxmann.co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of admission what is to be looked upon is that there is a pre existing dispute as regard to the claims made by an Operational Creditor or not. The dispute has been defined in section 5(6) of the IBC, 2016. The said section is reproduced as under:- '5(6)- Dispute includes a suit or arbitration proceedings relating to- (a) the existence of the amount of debt; (b) The quality of goods or service; or (c) The breach of a representation of warranty;' 8. In the present case, none of the conditions mentioned in the said section exist in the suit filed by the Corporate Debtor in a sense that the suit is in the realm of allegation and that too with reference to misconduct mainly of its employee. It is also settled by judicial decision that dispute must not be frivolous and should not have been created to avoid payment of legitimate debts. It is further observed that several suppliers have been impleaded and operational creditor is one of them, hence, such suit does not specifically dispute the claim of operational creditor only. This fact by itself is sufficient to make the contention of corporate debtor devoid of merits. If such kind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 14 of the Insolvency Bankruptcy Code, 2016 prohibits the following: (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); (d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. v. The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during moratorium period. vi. The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
