TMI Blog2020 (3) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord, petitioner is able to establish that there exists debt as well as occurrence of default - . Here in this case the application is in proper format as prescribed under I B Code 2016 and is complete in all respect and is not barred by any law. 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. 166/9/NCLT/AHM/2018 - - - Dated:- 20-12-2019 - Ms. Manorama Kumari, Judicial Member And Chockalingam Thirunavukkarasu, Technical Member Krishnamohan Menon, Munjal Bhatt, Advs., Ms. Dania Nayyar and Vineeth Sheth for the Petitioner. Navin Pahwa, Sr. Adv. and Ms. Saumitra Chaturvedi, Adv. for the Respondent. ORDER Ms. Manorama Kumari, 1. Mr. Arvind Kumar Agarwal, on behalf of the operational creditor M/s. BLS Polymers Limited filed this Petition on 9thApril, 2018 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/opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt has become due and payable to the operational creditor. That, the operational creditor was constrained to issue a demand notice on 19.02.2018 under section 8 in accordance with the provisions of the IB Code, but no reply has been received from the corporate debtor. 5. In support of its claim, the petitioner has submitted copy of the following documents:- Sl. No. Particulars Page No. 1 Purchase orders dated 05.06.2015 and 04.02.2017 1-2 2 Invoices 3-12 3 Receipts issued by the transporter evidencing the delivery of the goods to the corporate debtor 13-22 4 Working computation of the calculated interest amount of ₹ 46,03,954.00 23 5 e-mail dated 26.11.2017 24 6 MOU dated 05.12,2017 25-30 7 Demand notice dated 19.02.2018 along with annexures and proof of dispatch and deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commitments of MOU. 11. It is also a matter of record that on 08.03.2018 the corporate debtor acknowledged that he had defaulted in paying the debt and also requested the operational creditor not to deposit the post-dated cheques. The said document is filed by the operational creditor by way of additional affidavit showing that the corporate debtor has miserably failed to keep his commitment. 12. On perusal of the records it is found that the first and foremost objection/contention raised by the respondent is that in all the purchase orders raised by the corporate debtor, there was no agreement/condition as to payment of interest it is alleged that the corporate debtor has never agreed to the interest, the mention of interest in the invoices by the petitioner is unilateral act which is contrary to the terms and conditions contained in the contract i.e. the purchase order, the petitioner has never demanded interest from the respondent and the petitioner has also In fact not actually accounted for interest in its books. 13. On perusal of the reply it is also found that in para 12, the corporate debtor has claimed to have made total payment of ₹ 78,45,963/- to the oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a written contract and the suit based on such invoices is a suit based on the written contract. This view is fortified by the Madras High Court reported in the Madras Law Journal Reports 1988 page 187 (Lucky Electrical Stores, by partner Mahendra Kumar Shah v. Ramesh Steel House by partner Babulal) where the Chief Justice M.N. Chandurkar rejected the contention similar to the one applied by the defendants in this case. 15. Thus, defence of the corporate debtor that purchase order does not contain interest clause is not tenable in as much as the invoices contain the interest clause. 16. On perusal of the reply filed by the corporate debtor it is also observed that more stress is made towards the issue of interest and the main defence raised by the corporate debtor that there is no agreement between the parties on payment of interest towards overdue payments as per the purchase orders placed on the operational creditor is illogical and without any justification. 17. It is also a fact that amount is due and payable to the operational creditor which is above ₹ 1.00 lac as per section 4 of the I B Code and no dispute is ever raised by the corporate debtor nor the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Applicant, No dispute has been raised by the respondent. That, Applicant is an Operational Creditor within the meaning of sub-section (5) of 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. 21. Here in this case the application is in proper format as prescribed under I B Code 2016 and is complete in all respect and is not barred by any law. 22. The applicant/operational creditor has proposed the name of Mr. Umesh Ved to act as Interim Resolution Professional. Therefore, this Adjudicating Authority hereby appoint Mr. Umesh ved, 304,shoppers Plaza-v, OPP, Municidal Market, C.G. Road, Navrangpura, Ahmedabad 380 009 (Mobile 98250 35998) having registration No. IBBI/IPA-002/IP-N00136/2017-18/10376 to act as an interim resolution professional under Section 13(l)(c) of the Code. 23. Section 13 of the Code enjoins upon the Adjudicating Authority to exercise its discretion to pass an order to declare a moratorium for the purposes referred to in Section 14, to cause a public announcement of the initiation of corporate insolvency resolution and call for submission of claims as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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