TMI Blog2020 (6) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor as the Director of the Corporate Debtor is the one who wants the equipment to be installed in a new place and as such he has delayed in installation of the said equipment and now he cannot plead to the contrary by stating that the Operational Creditor has not installed the equipments and hence they are not entitled for any payments. Even though the Corporate Debtor has alleged that the Operational Creditor has delayed in installing the equipments at the premises of the Corporate Debtor, the Corporate Debtor has not placed on record any documents to show, nor any exchange of e-mails between the parties, in relation to the delay in installation of the equipment on the part of the Operational Creditor and as such the Corporate Debtor, with an intent only to evade the payments to be made to the Operational Creditor has raised such a contention, and furthermore the said plea was raised by the Corporate Debtor only after the issuance of the Demand Notice and as such the same cannot be termed as a pre-existing dispute - after conscientious examination of the records and taking into consideration the facts and circumstances of the case as well as the position of Law, it is co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt which inter alia includes the following; (i) Purchase Order dated 14.06.2017 and (ii) Invoice dated 15.06.2017 4. The Learned Counsel for the Operational Creditor submitted that the Operational Creditor is engaged in the business of sale, service of top-of-the-line health care equipment available to the hospitals in India and further the Operational Creditor is also providing high quality training to the end users on an on-going basis. It is submitted that the Corporate Debtor vide purchase order dated 14.06.2017 placed order with the Operational Creditor for supply of Ultrasonic Surgical Aspirator System with accessories and other products and the Operational Creditor after discount offered the said equipment for a sum of ₹ 42,00,000/- and the Operational Creditor has also raised an invoice dated 15.06.2017 for the sum of ₹ 42,00,000/-. 5. The Learned Counsel for the Operational Creditor submitted that as per the Purchase order, the Operational Creditor delivered the ordered products to the Corporate Debtor on 01.07.2017. It was submitted by the Learned Counsel for the Operational Creditor that when the staff of the Operational Creditor requested for app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor is an afterthought, with an intention to escape the payment to be made to the Operational Creditor and the same has been raised after receiving the Demand notice. It was also contended by the Learned Counsel for the Operational Creditor that if there exists a real dispute between the parties, the Corporate Debtor would not have paid to the Operational Creditor a sum of ₹ 1,00,000/- towards part payment. 9. The Learned Counsel for the Corporate Debtor has filed reply and has submitted that the present Application filed under Section 9 of IBC, 2016 for initiating Insolvency Resolution Process against the Corporate Debtor is not sustainable in law and facts and it is nothing but an abuse of process of law. Further it has been submitted that the Operational Creditor is misusing the provisions of the IBC, 2016 with intent to extort monies from the Corporate Debtor. The main contention raised by the Learned Counsel for the Corporate Debtor is that the Operational Creditor is the one who had failed to install the equipments after supplying the same as per the agreed terms and the said equipment is still kept at the same place where it was offloaded and there is no utility va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts that the installation and training of the system will be done by the Factory trained engineers and it does not state that the payments will be made only after Installation Training of the equipments as alleged by the Corporate Debtor. Further, it may be seen that the delay in installation of the equipments in the premises of the Corporate Debtor is attributable to the Corporate Debtor as the Director of the Corporate Debtor is the one who wants the equipment to be installed in a new place and as such he has delayed in installation of the said equipment and now he cannot plead to the contrary by stating that the Operational Creditor has not installed the equipments and hence they are not entitled for any payments. 14. Further, it may also be seen even though the Corporate Debtor has alleged that the Operational Creditor has delayed in installing the equipments at the premises of the Corporate Debtor, the Corporate Debtor has not placed on record any documents to show, nor any exchange of e-mails between the parties, in relation to the delay in installation of the equipment on the part of the Operational Creditor and as such the Corporate Debtor, with an intent only to eva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. 17. However, during the pendency of the moratorium period in terms of Section 14(2) (2A) and 14(3) as extracted hereunder: (2) 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. (2A) Where the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or services critical to protect and preserve the value of the Corporate Debtor and mange the operations of such Corporate Debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such Corporate Debtor has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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