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TMI Blog2019 (9) TMI 1469X X X X Extracts X X X X X X X X Extracts X X X X ..... Signatory to file the petition, sign and verify the petition under Section 9 of the Code and to do all the necessary acts during the progress of the case. 2. The respondent-company was incorporated on 21.12.2016 under the Companies Act, 2013 with authorised share capital of ' 1,25,00,000/- and paid up share capital of ' 1,11,26,840/-. The master data of the respondent-company is at Annexure P-3 of the Petition. As per the master data at Page 43 of the Petition the registered office of the Corporate Debtor is at Showroom No. 3, Ground Floor, Madhya Marg, Sector 7, Chandigarh-160018 and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 3. The facts of the case, briefly stated, are that the petitioner-'operational creditor' entered into an agreement with Mars Enterprises (the proprietorship concern of the sole proprietor Mr. Satbir Singh Saini, who is one of the directors of the respondent-'Corporate Debtor') to supply all the products, stock to the Corporate Debtor and received the payments due from the Corporate Debtor instead of Mars Enterprises (sister concern of respondent-Corporate Debtor). It is stated that the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this petition, copy of the same was dispatched to the respondent-corporate debtor on 11.06.2018 as per the postal receipt at page 1425 of the paper book in order to comply with the requirement of Rule 6(2) of the Rules. 6. Notice of this petition was issued to the respondent-corporate debtor. It was directed that the notice be sent along with copy of the petition and the entire paper book by speed cost immediately as well as at the e-mail receipt with tracking report are enclosed and the item sent by speed post was delivered unclaimed as mentioned at Page 6 of the said affidavit. In the affidavit, it was also stated that copy of the notice was also sent at e-mail address of the respondent-corporate debtor available on the master data and the copy of the e-mail is attached as Annexure P-2 of the affidavit. 7. The respondent-Corporate Debtor filed reply dated 20.05.2019 (Diary No. 2576 dated 21.05.2019) stating therein that agreement dated 02.06.2016 was amended and modified by a supplementary oral agreement dated 22.12.2017 which was confirmed vide a letter dated 27.12.2017 whereby, it was agreed that petitioner shall take over the business control with right to use the premis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled rejoinder to the reply of the respondent by Diary No. 3381 dated 12.07.2019 which is as follows:- a) The respondent corporate debtor mislead and concealed the facts that the cheques issued by the Petitioner were dishonoured not due to lack of funds but from the returning memo it is clear that the cheques were not allowed to be cleared due to being "stopped by the drawer", so the cheque bearing no 0068001 issued to the respondent was not honoured. b) The two agreements (agreement dated 02.06.2016 and oral agreement as the pre-requisite of the oral agreement was the clearance of all the past liabilities payable to the Petitioner under separate agreement dated 02.06.2016. c) The respondent took illegal possession of the products/stock of the Petitioner even after receipt of the termination notice dated 01.04.2018 issued by the Petitioner. When the authorised representative of the Petitioner visited the outlet of the Corporate Debtor he refused to cooperate and return the products/stock of the Petitioner. Further, the authorised representative of the Petitioner has also filed a criminal complaint against the directors of the Respondent with Chandigarh Police. d) The Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is at page no 1617 of the petition, as per the audited Balance Sheet for Financial Year 2016-17, has also been filed. Moreover, demand notice in Form No. 4 was also sent on 13.03.2018 stating that the amount due from the corporate debtor to the operational creditor is ' 68,77,460/- (excluding interest @ 24% claimed by the Operational Creditor) and despite service of the No Interim Resolution Professional has been proposed by the Petitioner. 13. During the course of hearing on 18.07.2019, the learned counsel for the petitioner relied on the case Sudhi Sachdev vs. APPL Industries Ltd. in which it was held that the pendency of the case under Section 138/441 of the Negotiable Instrument Act, 1881 actually amounts to admission of debt and not an existence of dispute. Reliance was also placed on the decision of NCLT Kolkata held in the case of M/s. Sumnex Mercantile Pvt. Ltd vs. M/s. Shirdi Plywood Pvt. Ltd. in which it was held that proceedings under section 138 of the Negotiable Instrument Act is a different proceeding and liability occurs when a cheque is dishonoured. 14. List of evidences which have been considered by the Bench as submitted by the petitioner are:- (i) Copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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. 21. 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 financial sector regulator and to a surety in a contract of guarantee to a corporate debtor. 22. The order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the 'resolution plan' under sub-section (1) of Section 31 or passes an order for 'liquidation' of corporate debtor under Section 33 as the case may be. 23. Under sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the 'Code', including taking control and custody of the assets over which Professional is directed to prepare a complete list of inventory of assets of the 'Corporate Debtor'; iv) The Interim Resolution Professional shall strictly act in accordance with the 'Code', all the rules framed thereunder by the Board or the Central Government and in accordance with the 'Code of Conduct' governing his profession and as an Insolvency Professional with high standards of ethics and moral; v) The Interim Resolution Professional shall cause a public announcement within three days as contemplated under Regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 of the initiation of the Corporate Insolvency 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'; vi) It ..... 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