TMI Blog2020 (9) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. In response to Section 8 notice, respondent corporate debtor has filed its reply acknowledging the outstanding amount and expressed its inability to pay the debt due to financial difficulty. The present application under Section 9 of the Code has been filed in requisite Form-5, wherein it was specifically mentioned that in the reply received from the corporate debtor there has been admission of debt and default and no dispute was raised against the claim of the applicant operational creditor. The application under Section 9 is thus complete and the required particulars have been furnished along with details of subsistence of default - in compliance of sub-section (3) (b) and (C) of Section 9 of the Code, the petitioner has affirmed that respondent corporate debtor has not raised any dispute in respect of the unpaid operational debt. There is a clear admission of debt and default and therefore there is no need to comply with any additional requirement as provided in Clauses (d) and (e) of sub-section (3) of Section 9 of the Code - In the present application all the aforesaid requirements have been satisfied. It is seen that the application preferred by applicant operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Operational Creditor on Corporate Debtor for supply of Air Conditioner aggregating to ₹ 13,30,662/- iii. Since no payment was received from Corporate Debtor, the Operational Creditor sent first reminder to Corporate Debtor for payment on July 12, 2019. iv. On September 3, 2019, Operational Creditor sent second reminder to Corporate Debtor for payment. v. On September 18, 2019, the Corporate Debtor acknowledged receipt of invoice stated above and said they will make payment shortly. vi. On April 1, 2019, Corporate Debtor confirmed the balance outstanding payable to Operational Creditor. 5. The operational-creditor on 09.10.2019 sent a demand Notice to the Corporate-debtor to pay outstanding debt amount a sum of ₹ 13,30,662/-. The Corporate-debtor has failed to file his reply to the demand notice which was sent by the Operational-creditor on 09.10.2019. 6. Respondent company has filed its reply to the petition on 23.01.2020 mainly with the contention that the Corporate Debtor is facing financial distress due to some abnormal losses in their business strategy in last few years. There is an admission in the reply that balance outstanding cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of Corporate Insolvency Resolution Process by the Operational Creditor is delineated under Section 9 of the Code. The present application filed by operational creditor, accordingly, has to be dealt with in terms of Section 9 of the Code. 13. Sub-section (1) of Section 9 mandates filing of the petition only after expiry of the period of 10 days from the date of delivery of notice or invoice demanding payment under sub-section (1) of Section 8. 14. In the present case admittedly the demand notice in Form-3 as per Section 8 of the Code was sent on 09.10.2019. It is thus seen that before filing the present application under Section 9 of the Code, requisite notice under Section 8 was duly served on the Respondent. In response to Section 8 notice, respondent corporate debtor has filed its reply acknowledging the outstanding amount and expressed its inability to pay the debt due to financial difficulty. In other words, the corporate debtor had not disputed the claim in its reply given in terms of sub-section (2) of Section 8 of the Code. 15. The present application under Section 9 of the Code has been filed in requisite Form-5, wherein it was specifically mentioned that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed with the application shows that the aforesaid debt is due and payable and has not yet been paid? and (iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute? 21. In the present application all the aforesaid requirements have been satisfied. It is seen that the application preferred by applicant operational creditor is complete in all respect. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the applicant operational creditor. Respondent company also did not raise any dispute regarding the existence of operational debt. In fact, the claim of default committed by the corporate debtor has not been denied. Once the application is complete and in the absence of any dispute and with the subsistence of default, the application is liable to be admitted. 22. Therefore, on fulfilment of requirements of Section 9(5)(i) (a) to (d) of the Code, the present application is admitted. 23. In terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 corporate debtor. 27. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14(3)(b) of the Code. 28. The Interim Resolution Professional shall perform all his functions contemplated, inter-alia, by Sections 15, 17, 18, 19, 20 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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