TMI Blog2020 (2) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... on and/or any other law for the time being in force. It is a fit case to initiate Insolvency Resolution Process by admitting the Application under section 9(5)(1) of the Code - petition admitted - moratorium declared. - C.P. (IB) NO. 88/9/NCLT/AHM/2019 - - - Dated:- 10-12-2019 - MS. Manorama Kumari, Judicial Member Arjun Sheth, Adv. and Ms. Vidhi Thakkar for the Petitioner. D. Shroff, Sr. Adv., Zubin F. Bharda and Rajendra D. Jadhav, Advs. for the Respondent. ORDER 1. Mr. Paresh S. Kapashi, being authorised signatory on behalf of the operational creditor M/s. Indu Corporation Private Limited filed this Petition under Section 9 of The Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as the Code ] read with Rule 6 of The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 [hereinafter referred to as the Rules ], as operational creditor/applicant. 2. The petitioner/operational creditor is a private limited company having Identification No. U27104MH2006PTC160932 and having registered office at Worli, Mumbai is engaged in supply of steel and allied material. 3. The respondent/corporate debtor is a company registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor has replied to the demand notice vide letter dated 5th July, 2018 which is beyond the stipulated period of 10 days from the date of receipt of demand notice. That, the application is well within the period of limitation as the last payment received was on 31.03.2016 and the demand notice was received on 12th June, 2018. That, even after service of demand notice no payment has been received from the corporate debtor, hence this petition. That, the total amount claimed to be in default is ₹ 4,57,71,578/- (Rupees four crores fifty-seven lakhs seventy-one thousand five hundred seventy-eight only) which include interest claimed on the debt up to 06.06.2018 @ 18% per annum. 7. In support of its claim, the petitioner has submitted copy of the following documents: - Sl. No. Particulars Page No. 1 Board resolution authorising Mr. Paresh Kapashi to act on behalf of the operational creditor 11 2 Particulars of claim 12 3 Statements showing details of invoices, date of bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of what quality came to be received by the respondent etc. Findings 9. Heard learned lawyers appearing for both the sides, also seen the documents annexed to the application. 10. On perusal of the records it is found that the demand notice dated 6th June, 2018, received by the respondent on 12th June, 2017 and replied by the corporate debtor on 5th July, 2018. In the reply dated 5th July, 2018, the corporate debtor has admitted having received the demand notice on 11th June, 2018. That, the corporate debtor had replied the demand notice beyond the stipulated period of ten days. 11. On perusal of the records it is found that the last date of the invoice against which payment is due is 22.09.2015 and the last payment received against the outstanding is 31.03.2016. Since this fact has been never denied by the corporate debtor, the question of the petition being time barred due to the law of limitation does not arise. Moreover, in the reply itself the corporate debtor admitted to have paid ₹ 2,00,000/- on 31.03.2016 as reflected from para 10 of the reply. 12. Further, on perusal of the ledger attached to the reply filed by the respondent (Page Nos. 52 to 54) it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? If any of the aforesaid conditions is lacking, the application would have to be rejected. 16. Thus, under the facts and circumstances and as discussed above, in the light of the Hon'ble Supreme Court Judgment and the provisions thereof as enshrined in Insolvency Bankruptcy Code, this adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of IB Code. That, Applicant is an Operational Creditor within the meaning of section 5 sub-section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force. 17. Section 13 of the Code enjoins upon the Adjudicating Authority to exercise its discretion to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33 as the case may be. 22. The applicant/operational creditor has not proposed the name of IRP. Therefore, this Adjudicating Authority hereby appoint Shri Manish Kumar Bhagat, 103-104 Panchdeep Complex, Mithakhali Six Road, Navrangpura, Ahmedabad 380 009 (mbhaqat2003@gmail.com) having registration No. IBBI/IPA-001/IP-P00856/2017-2018/11438 to act as an interim resolution professional under section 13(l)(c) of the Code. 23. This Petition is accordingly admitted. 24. Communicate a copy of this order to the applicant, Corporate Debtor, Registrar of Companies and to the Interim Resolution Professional. 25. Registry is directed to inform the office of the Registrar of Companies that the respondent company is under corporate insolvency resolution process and, therefore, no proceedings for striking off name of the respondent company be initiated arising out of non-compliances of Sections 159 to 162 220 etc. of the Companies Act, 2013 as it would be detrimental to the process of liquidation and sale of assets to realise the amount for all the sta ..... 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