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TMI Blog2020 (7) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... L2012PTC031848 and has its registered office at No. 2/212 Anakkal, Munnekkar P. O., Karimba, Palakkad - 678 597, in the State of Kerala and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 2. The Operational Creditor filed this application to realise the trade dues arising out of its usual course of business. As on 1-11-2018, the Corporate Debtor is liable to pay a sum of USD 20544 (INR 14,99,712/- at conversion rate as on 1-11-2018 1USD=[Rs. 73.38]) with future interests on invoice dated 14-12-2015. Submissions by Operational Creditor: 3. The learned counsel for the Operational Creditor submitted that the Operational Creditor had affected supplies in terms of the Proforma Invoice/Purchase Order and raised an Invoice bearing No. 90012278 dated 14-12-2015 and sought for payment. The Corporate Debtor had paid 50 % of the invoice value, which was the condition precedent for production and the balance 50% was to be paid on delivery. The Corporate Debtor further accepted delivery of the complete order and certified that the product supplied was in conformity with the specifications and quality. 4. The Operational Creditor stated that the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the ASTMD3577 standards prescribed for glove manufacturing. The supply of the defective goods resulted in huge loss in the business, but in order to maintain the good business relationship, the Corporate Debtor has not taken any legal action in this regard except discussed the issue in person with the sales department of the Operational Creditor, which was reflected in the email sent by the Operational Creditor. 9. The counsel for the Corporate Debtor stated that there was no agreement entered by the parties regarding the interest rate and it is a pure commercial transaction where the Operational Creditor has no jurisdiction to file the present application before this Hon'ble Tribunal. 10. The counsel further submitted that the Operational Creditor has breached the contract by delivering the product which was not as specified in respondent's proposal nor as per the Performa invoice as produced by them. Therefore, pleaded to dismiss this application. Reply Affidavit by the Operational Creditor: 11. The applicant in his reply affidavit against the counter submitted that the claimant had supplied all products conforming the specifications as supplied to Beta Healthcare w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced along with the MA is defective and could not be taken on record, as there are 5 Board members, only two have signed the resolution and hence, the decision is not accepted by other members in Board. The counsel for the Corporate Debtor further submitted that the resolution does not bear the seal of the company or not even counter signed by the Malaysian embassy and no document have been produced to prove that the said resolution was communicated to Registrar of Companies. Findings: 18. Merely relying on the claim made in the application and ordering CIRP will defeat the very purpose of the Code given the severity of the consequences that follow on initiation of insolvency proceedings against a company, it is important to safeguard against the exploitative use of the Code. Therefore, we have gone through the pleadings on record and perused the submissions made by learned counsel for both sides. 19. We have gone through the Miscellaneous Application filed by the applicant, we are satisfied with the resolution passed by the Board of Directors on 20-1-2020 and accordingly, MA No. 14/KOB/2020 is allowed. 20. It is evident that the Corporate Debtor has admitted and acknowledged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ault stands established and there is no reason to deny the admission of the Petition. Accordingly, the Application filed under section 9 of the Insolvency and Bankruptcy Code for initiation of corporate insolvency resolution process against the corporate debtor deserves to be admitted. ORDER 24. It is, accordingly, hereby ordered as follows: - (a) The petition filed by Ceram Tec Innovative Ceramic Engineering (M) under section 9 of the IBC read with rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating CIRP against the corporate debtor i.e. Mariya Healthcare Private Limited (CIN: U33110KL2012PTC031848), is admitted. (b) There shall be a moratorium under section 14 of the IBC, in regard to the following: (i) 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; (ii) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (iii) Any action to foreclose, recover or en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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