TMI Blog2021 (5) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... icant by the respondent. The Adjudicating Authority is only required to consider whether there is any default and the debt is due and payable. In the instant case, the applicant has placed on record enough documents evidencing the default and hence, the present application deserves to be admitted - On perusal of the record it is also found that the instant petition filed by the applicant is well within limitation and there is no pre-existing dispute regarding the operational debt from the side of the corporate debtor. In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the operational debt due and payable to the Applicant - The documents produced by the operational creditor clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'operational debt'. This adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of I B Code. No dispute has been raised by the respondent at any point of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of ₹ 5,13,12,320/- has been paid by the applicant to the respondent towards this business transactions. 5. The applicant has further stated that a total amount of ₹ 43,35,958/- is deducted towards goods returned to the respondent by the applicant. That, an amount of ₹ 4,01,38,654/- has been received by the applicant from the respondent. That, the applicant has charged 1% commission on the cotton sale transactions with the respondent aggregating to ₹ 28,67,733/- and the respondent vide email dated 15.12.2019 has accepted and acknowledged that commission is payable by the respondent. Further, the respondent has acknowledged an amount of ₹ 15,18,806/- towards commission payable to the applicant by email dated 15.12.2019. That, in terms of the business transaction of yarn purchased and sale of cotton between the applicant and respondent, an amount of ₹ 1,18,39,134/- is due and payable by the respondent. That, according to the ledger account of the applicant, from 01.04.2018 to 07.01.2020, the respondent has acknowledged that an amount of ₹ 1,03,23,529/- which is due and payable by the respondent. That, as per the ledger and as per the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reply to the demand notice; that, respondent company is directly or indirectly connected with petitioner firm; that, there is/are mistakes in the petition; Findings: 10. Heard learned counsels appearing for both the sides and perused the documents annexed to the application/reply. 11. On perusal of the records it is found that on 16.03.2021, both the sides were heard extensively and the arguments were concluded, however, on the request of the respondent, permission was granted to file documents and fixing the matter on 13.04.2021. As per the records no document has been filed on 13.04.2021. 12. On perusal of the records it is found that the applicant, a trader, procure raw cotton from different producers from the open market and sell it to the respondent, who, in turn, convert the raw cotton into yarn. During the course of business, the applicant as well as the respondent raise invoices oh each other and the applicant charge 1% commission on the respondent. On receipt of invoice from the respondent for the finished product, the applicant release payment of the suppliers. Copies of such tax invoices along with e-way bills raised by the applicant on the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t'. 17. It has been observed in Mobilox Innovative Private Limited vs. Kirusa Software Private Limited [2017] 1 IBJ (JP) 2 SC that while examining an application under Section 9 of the Act, will have to determine the following: (i) Whether there is an operational debt as defined exceeding ₹ 1.00 lac (See Section 4 of the Act) (ii) Whether the documentary evidence furnished 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? If any of the aforesaid conditions is lacking, the application would have to be rejected. 18. Thus, under the facts and circumstances and as discussed herein above, in the light of the Hon'ble Supreme Court Judgement and the provisions thereof as enshrined in Insolvency Bankruptcy Code, this adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of I B Code. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 22. It is further directed that the supply of goods and essential services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. The provisions of sub-section (1) shall, however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. 23. The order of moratorium shall have effect from the date of receipt of authenticated copy of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under subsection (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33 as the case may be. 24. The applicant/operational creditor has not proposed the name of Interim Resolution Professional. Therefore, this Adjudicating Authority hereby appoint Mr. Bhupendra Singh Narayan Singh Rajput, A-309, ATMA House, Opp, Old RBI, Ashram Road, Ahmedabad-380009 having IBBI Registration No. : IBBI/IPA-001/IP-P00397/2017-18/10715 (Email cabsrajput309@gma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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