TMI Blog2020 (3) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as occurrence of default - the Application filed by the Applicant is complete in all respects. Petition is admitted - moratorium declared. - C.P.(IB) NO. 178/9/NCLT/AHM/2018 - - - Dated:- 9-12-2019 - Ms. Manorama Kumari, Judicial Member Amrish Gandhi, PCS for the Petitioner. Ishan Shah for the Respondent. ORDER 1. Mr. Praful Domadia, on behalf of the operational creditor M/s. Starwing Plastics Chemicals 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 ]. 2. The applicant/operational creditor is a registered private limited company having identification No. U25203MH2013PTC244446 and having registered office at MIDC, Nr. Marol Bus Depot, Andheri (E), Mumbai 400 093 engaged in import and distribution of plastic and chemicals i.e. additives. The applicant is also in the business of distribution and supply of polymers, chemicals and polyester raw material products. 3. The respondent corporate debtor is a private limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply came to be returned by postal authorities with remark incomplete address . 9. It is submitted by the applicant that fresh notice dated 14.09.2017, through advocate, was issued to the respondent at its registered office address which was duly received by M/s. Baid Industries Pvt. Ltd., but, the same was neither complied with nor replied to. 10. It is submitted by the applicant that, through its advocate, once again issued fresh notice dated 02.11.2017 enclosing therewith a resolution passed by the applicant authorising its advocate to issue demand notice at the registered office of M/s. Baid Industries Pvt. Ltd. under the provisions of the Code. Though the notice was duly received by M/s. Baid Industries Pvt. Ltd., it was not complied with. 11. It is submitted by the applicant that under such circumstances the applicant was constrained to file application under Section 9 of the I B Code against M/s. Baid Industries Pvt. Ltd. Being CP (IB) No.2/9/NCLT/AHM/2018 before this Tribunal. 12. The applicant had also filed Commercial Civil Suit No. 27/2018 being Commercial Civil Suit No. 27/2018 against M/s. Baid Industries Pvt. Ltd. as well as the corporate debtor who i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018, when the first post-dated cheque of ₹ 5,85,039/- dated 20.07.2018 being the first instalment towards payment of total amount of ₹ 3,51,02,340/- was presented, it was dishonoured as per stop payment instruction given by M/s. Baid Industries Pvt. Ltd. violating the terms and conditions of settlement agreement dated 11.05.2018. That, the applicant vide legal notice dated 26.07.2018 brought to the notice of M/s. Baid Industries Pvt. Ltd. that the terms and conditions of the settlement agreement dated 11.05.2018 has been violated. 17. It is submitted by the applicant that the applicant vide demand notice dated 22.01.2019 under Section 8 of the provisions of the IB Code, once again called upon M/s. Baid Industries Pvt. Ltd. to make payment of ₹ 3,51,02,340.00 (Rupees three crores fifty-one lacs two thousand three hundred forty only) however, M/s. Baid Industries Pvt. Ltd. failed to clear the outstanding debt. 18. It is further submitted by the applicant that, under these circumstances, the applicant was constrained to file section 9 application under the IB Code against M/s. Baid Industries Pvt. Ltd. being CP (IB) 478/2018 before this bench. 19. It is furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed an order on 23.07.2019 for paper publication. Since service is complete, the matter has been heard in absence of the corporate debtor. 22. While examining an application under section 9 of the Act, will have to determine the following:- (i) Whether there is an operational debt as defined exceeding ₹ 1.00 lac (See Section 4 of the Act) (ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid; and (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. 23. Thus, under the facts and circumstances and as discussed above, in the light of the Hon'ble Supreme Court Judgement 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. That, service is complete and no dispute has been raise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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