TMI Blog2019 (10) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be taken into consideration in the instant case. The present application is complete in all respects and the applicant is entitled to claim its dues. The applicant succeeded in establishing the default in payment of the operational debt beyond doubt - petition admitted - moratorium declared. - T. I. B. A. No. 14/KOB/2019 - - - Dated:- 25-10-2019 - Ashok Kumar Borah (Judicial Member) And Veera Brahma Rao Arekapudi (Technical Member) For the Operational Creditor/Applicant : Abraham George Jacob For the Corporate Debtor/Respondent : Paulose C. Abraham ORDER 1. This application has been filed by, M/s. Capedge P. Ltd., represented by its director, Mr. Karukaparambil (for short to be referred hereinafter as the operational creditor ) under section 9 of the Insolvency and Bankruptcy Code, 2016 (for short to be referred hereinafter as the Code ) for initiating insolvency resolution process against M/s. India Techs Ltd. (for short to be referred hereinafter as the corporate debtor ), a company registered under the Companies Act, 1956. The corporate debtor was incorporated on August 18, 1983 under the Companies Act, 1956 and continues now its existence with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insolvency resolution process under the IBC. 7. The corporate debtor had submitted that they have entered into certain consultancy agreements dated November 15, 2015, December 23, 2015 and December 23, 2016 with the operational creditor by which they had agreed to certain points which are clearly specified in annexure R-1 appended with the counter statement. 8. The corporate debtor further submitted that the operational creditor went astray from the terms and conditions in the agreement and they had never rendered any services that were promised by them. Further through the e-mail communication dated February 15, 2018 it was informed to the operational creditor to furnish the details of work done in the invoices raised for accounting purposes, even then the operational creditor do not divulge any of the services rendered on the basis of which the invoices were raised. Therefore, the corporate debtor claims that they do not owe any debt to the operational creditor. 9. The corporate debtor in the counter statement also stated that the operational creditor had entered into two separate loan agreements dated February 28, 2016 and February 29, 2016 with M/s. Telsa Marketing P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py of the agreement dated November 15, 2016 executed between both the parties, which was not produced by the corporate debtor was produced along with the rejoinder (annexure VII). It was further submitted that the corporate debtor had never raised a dispute regarding the services rendered at any time before, either during the tenure of the agreement or after completion of the same. 13. It was further submitted by counsel for the operational creditor that there are no terms in any of the agreements that cast an obligation on the operational creditor to submit formal reports to the corporate debtor. It was claimed that the operational creditor had not entered into any agreement with M/s. Telsa Marketing P. Ltd. The matter relating to the transaction between M/s. Telsa Marketing P. Ltd. and M/s. Capedge Energy P. Ltd. and M/s. Capedge Metals and Minerals P. Ltd. which are separate and distinct legal entities cannot be dragged into the present proceedings. 14. The operational creditor vehemently denied all the averments in relation to the non-receipt of the demand notice, sufficient evidence for filing this application and also the intention to pressurise the corporate debtor. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (1) bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing-i. e., before such notice or invoice was received by the corporate debtor. From the aforesaid judgment, it will be evident that the existence of a dispute or the record of the pendency of a suit or arbitration proceedings should be pre-existing, i. e., prior to demand notice or invoice received by the corporate debtor . The moment there is existence of dispute, the corporate debtor gets out of the clutches of the I and B Code. 18. The corporate debtor had placed reliance on the letter dated January 21, 2018 written by them to hold that there is an existence of dispute. However, on perusal of the e-mail communication, we found that the corporate debtor is merely asking for further information on the services rendered by the operational creditor for each of the invoices raised. Can this be considered as a pre-existing dispute is the moot question. 19. To answer this, we relied on the judgment of the hon'ble Supreme Court in Mobilox Innovations P. Ltd. v. Kirusa Software P. Ltd. [2017] 205 Comp C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neficial 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 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 possession of the corporate debtor. II. It is further made clear that : (a) The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period. (b) That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (c) That the order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) section 31 of the IBC or passes an order for liquidation of the corporate debtor under section 33 of the IBC, as the case may be. (d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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