TMI Blog2021 (4) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... vered to the Corporate Debtor - the Demand Notice was served to the Corporate Debtor but Corporate Debtor did not reply to the notice either by pointing pre-existing dispute or the fact that it has made payment of the amount of the debt as claimed by the Operational Creditor. It is the defence of the Corporate Debtor that in fact some amount is receivable from them but we hold that defence of set off or counter-claim is not available under the IBC, 2016. We also make it clear that if Corporate Debtor had any defence, he certainly would have replied the Demand Notice within 10 days of its receipt - the Operational Creditor established that there is an Operational Debt more than ₹ 1,00,000/- (as per Sec. 4 of IBC, 2016) due and payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice charges and the price of those parts. b. Operational Creditor submitted various invoices attached to Annexure A- 3 of the Application to show that it has provided the maintenance service and also supplied some of the parts of the aircraft. c. The amount is claimed towards maintenance charges, interest thereon and also penalty there to. 3. The Operational Creditor states that since the Corporate Debtor committed default in paying the Operational Debt as claimed by it, it has sent notice U/s. 8 of IBC to the Corporate Debtor. 4. Inspite of receipt of Demand Notice, the Corporate Debtor did not clear the debt nor replied to the notice pointing out any pre-existing dispute. Hence, the Operational Creditor filed this Applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor has raised is that nothing is due and payable by them. 12. It is mandate of Law that before filing of Application U/s. 9 of IBC, the Operational Creditor has to serve notice to the Corporate Debtor U/s. 8 of IBC and the Corporate Debtor within 10 days from receipt of notice either to show that payment as claimed has been made or there is a pre-existing dispute about the service rendered or goods sold. In this case, the Corporate Debtor has come out with the preliminary defence that it has not been served with the Demand Notice itself. 13. We have gone through the evidence on record. 14. The Demand Notice U/s. 8 dated 05.04.2019 is recorded and annexed as Annexure A- 4. It was sent by speed post and in rejoinder the Ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not suggested name of any RP for appointment as IRP and left the matter at the discretion of this Adjudicating Authority and we hereby appoint Mr. Santosh Bhatia as IRP from the list provided by the IBBI against whom no departmental enquiry appears to be pending. 19. This Application is defect free. 20. This Adjudicating Authority is further satisfied that the Operational Creditor has proved its case by placing evidence that default has occurred for which the Corporate Debtor was liable to pay. The Operational Creditor has also placed on record of proof of sending notices to the Respondent/Corporate Debtor for their appearance and for making submissions also along with the requirements as stipulated under the provisions of the IB Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring, alienating or disposing of by the Corporate Debtor any of its assets or any legal rights 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 Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 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. e. Notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d all assistance and co-operation to the IRP as stipulated under Section 19 and for discharging his functions under Section 20 of the I B Code, 2016. 26. The Petitioner/Operational Creditor as well as the Registry is directed to send the copy of this Order to IRP so that he could take charge of the Corporate Debtor's assets etc. and make compliance with this Order as per the provisions of I B Code, 2016. 27. The Registry is directed to communicate this Order to the Operational Creditor and the Corporate Debtor. 28. The Registry shall also communicate this Order to the ROC, Hyderabad for updating the status of the Corporate Debtor in the MCA website. 29. The address details of the IRP are as follows:- Mr. Santosh Bhatia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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