TMI Blog2020 (7) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... n shown that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till date. It is also observed that the conditions under section 9 of the Code stand satisfied. The applicant-operational creditor states that from the above mentioned facts, it is clear that the liability of the respondent-corporate debtor is undisputed. Accordingly, the petitioner proved the debt and the default, which is more than ₹ 1 lac by the respondent-corporate debtor. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition for initiation of the CIRP process in the case of the Corporate Debtor U.I. Beverages Pvt. Ltd. is admitted - moratorium declared. - CP (IB) NO. 97/CHD/PB/2019 - - - Dated:- 2-3-2020 - Ajay Kumar Vatsavayi, Judicial Member And Pradeep R. Sethi, Technical Member For the Petitioner : Gurpreet Singh, Adv. JUDGMENT AJAY KUMAR VATSAVAYI, JUDICIAL MEMBER 1. The instant petition is filed under section 9 of the Insolvency and Bankruptcy Code, 2016, (for short hereinafter referred to as 'Code') read with Rule 6 of Insolvency and Bankruptcy (Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices to the Corporate Debtor against the supplied materials which are at Annexure A-8 (page Nos. 61 to 71). It is submitted that the operational creditor requested the corporate debtor vide letter dated 14-2-2017 (Annexure A-9) to issue 'C Form in respect of supplies made to the operational creditor against their Purchase Order No. UIB/15-16/36 dated 6-7-2015 along with Debit Note for ₹ 4,23,794/- but the corporate debtor did not issue Form 'C and consequently Debit Note amount of ₹ 4,23,794/- has also become due. It is stated that corporate debtor started defaulting and failed to make payments against various invoices and the date from which the debt fell due is stated to be w.e.f. 19-5-2015 onwards i.e. from the dates of respective invoices. As per Part-IV of Form 5, the amount claimed to be in default is ₹ 33,86,063/-, plus admitted interest @ 18% per annum from the date of the respective invoices until the date of payment plus ₹ 4,23,794/- towards the applicable Central Sales Tax in lieu of 'C Form which was not provided by the corporate debtor. Computation of amount in default is annexed at Annexure A-6 of the petition. 3. It is stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich he has stated that he is currently not serving as Interim Resolution Professional/Resolution Professional/Liquidator in any proceeding. It is also stated that there are no disciplinary proceedings pending against him with the Board or ICSIIPA. 8. Notice of this petition was issued to the Corporate Debtor on 18-3-2019 to show cause as to why this petition be not admitted. Affidavit of service supported by tracking report and postal receipt was filed vide Diary No. 1437 dated 22-3-2019. The tracking report at page-4 of the affidavit states that the article is out for delivery. However, time being short, one more opportunity was granted to the corporate debtor vide order dated 25-3-2019 and the petitioner was directed to serve another notice intimating the date of hearing. Further, affidavit of service was filed vide Diary No. 2163 dated 29-4-2019 alongwith tracking report and postal receipt which shows that the notice was served on the corporate debtor on 1-4-2019. 9. There has been no representation on behalf of the corporate debtor on various dates nor they filed any reply inspite of affording them various opportunities vide orders dated 30-8-2019, 23-10-2019 and 18-12-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. 15. We have gone through the contents of the application filed in Form No. 5 and find the same to be complete. As discussed above, operational debt (in default) is ₹ 33,86,063/-, plus admitted interest @ 18% per annum from the date of the respective invoices until the date of payment plus ₹ 4, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Securitization and Reconstruction of Operational 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 corporate debtor. 19. 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 operational sector regulator and to a surety in a contract of guarantee to a corporate debtor. 20. The order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vency 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 cooperation to the Interim Resolution Professional in managing the affairs of the Corporate Debtor as a going concern and extend all cooperation 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 operational 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 order be communicated to both ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
