TMI Blog2019 (9) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... hd/2018. - - - Dated:- 3-9-2019 - Ajay Kumar Vatsavayi Judicial Member And Pradeep R. Sethi Technical Member For the Petitioner : Yash Pal Gupta For the Respondent : Deepak Agrawal and Shivam Bhardwaj JUDGMENT PRADEEP R. SETHI (TECHNICAL MEMBER). - 1. This petition is filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as Code) read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (Rules) by M/s. IPRO Sugar Engineering P. Ltd. (operational creditor) for initiating the corporate insolvency resolution process (CIRP) in the case of Spray Engineering Devices Ltd. (corporate debtor). As per master data at page 26 of the petition, the registered office of the corporate debtor is at Plot No. 25, Industrial Area, Phase II, Chandigarh-160 002. Therefore, the jurisdiction lies with this Bench of the Tribunal. 2. It is stated that the operational creditor issued various invoices from February 29, 2008 to October 1, 2009 and the debt is due from the date of first invoice, i. e., February 29, 2008 on account of consulting engineers services. In Part 4 of Form 5 the total amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate debtor filed reply dated April 9, 2019 vide Diary No. 1889, dated April 11, 2019. It is stated in the reply that the petitioner-operational creditor has breached the condition given in clause 8 of the co-operation agreement dated June 14, 2016 as IPRO Industrieprojekt GmbH incorporated a company namely IPRO India P. Ltd., on October 9, 2013 with the same objective for which the petitioner-company was incorporated. Further, it is stated that the petitioner instead of going into arbitration as per the hon'ble Punjab and Haryana High Court order dated July 19, 2018 in C. R. No. 548 of 2016 and 6163 of 2015, filed the present petition under section 9 of the IBC, thus committing contempt of the said order. It is stated that the corporate debtor has filed a petition under section 262 of the Companies Act, 2013 for winding up of the petitioner-company and is entitled to receive surplus and contribute deficit on the winding up of the company. Further, the petitioner-company has sent reply dated November 1, 2018 to the demand notice of the petitioner which is at page Nos. 211- 212. 9. In response to the reply filed by the respondent-corporate debtor, the authorised represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , holding that in case of delayed payments, interest can be claimed on operational debt as well. Therefore, the objection of the corporate debtor that the interest amount is not credited in the books of the operational creditor, becomes irrelevant. In any case, the extent of the claim will fall for consideration by the interim resolution professional. 12. Learned counsel for the corporate debtor has argued that the corporate debtor is the contributory shareholder of the operational creditor, holding 50 per cent. shares and since the preamble of the Code specifically speaks of interest of all the stakeholders, being the paramount objective of the Code, no action can be taken against the interests of the shareholder, holding 50 per cent. shareholding of the operational creditor. The present application is by an operational creditor. Section 5(20) of the Code defines an operational creditor to mean a person to whom an operational debt is owed. Section 5(21) of the Code, defines operational debt to inter alia mean a claim in respect of the provision of goods or services. As discussed above, the debt due by the corporate debtor to the operational creditor arises out of provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated July 19, 2018 in Civil Revision No. 548 of 2016 and Civil Revision No. 6163 of 2015 held that the matter be referred to the arbitrator in terms of the agreement dated June 14, 2006. Therefore, the directions for reference to arbitration were in the suit for recovery filed by the operational creditor. The operational creditor choosing not to avail the option would not disentitle him from filing an application under section 9 of the Code. Learned counsel for the corporate debtor has not been able to show any provision under the Code which disentitles a company from filing a petition under section 9 of the Code, if it is not a going concern and has not undertaken any business since last more than 5 years. Further, the petition under section 9 of the Code is to be decided with reference to the default of the corporate debtor vis-a-vis the operational debt of the operational creditor. Therefore, the financial position of the corporate debtor is not relevant. We may add here that the plea of learned counsel for the corporate debtor that arbitration proceedings are pending, cannot be accepted. 15. Learned counsel for the corporate debtor has stated that a petition for winding u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de as under : (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 Securitisation 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. 21. It is further directed that the supply of essential goods or services to the corporate debtor as may be specified, shall not be terminated or suspended or interrupted during moratorium period. The provisions of section 14(3) shall however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the corporate insolvency resolution process in terms of section 13(1)(b) of the Code read with section 15 calling for the submission of claims against corporate debtor ; (v) It is hereby directed that the corporate debtor, its directors, personnel and the persons associated with the management shall extend all co-operation to the interim resolution professional in managing the affairs of the corporate debtor as a going concern and extend all co-operation in accessing books and records as well as assets of the corporate debtor ; (vi) The interim resolution professional shall after collation of all the claims received against the corporate debtor and the determination of the financial position of the corporate debtor constitute a committee of creditors and shall file a report, certifying constitution of the committee to this Tribunal on or before the expiry of thirty days from the date of his appointment, and shall convene first meeting of the committee within seven days of filing the report of constitution of the committee ; and (vii) The interim resolution professional is directed to send regular progress report to this Tribunal every fortnight. A copy of this o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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