TMI Blog2021 (6) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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' - In the instant application, from the material placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant/operational creditor has stated that the operational debt originates from the purchase of Hydraulic Press Brake PPEB - 8 320/4000-3150 TANDEM Hydraulic Press Brake PPEB - 8 320/4000 - TANDEM from LVD Company nv (supplier). Corporate debtor issued purchase order dated 15.08.2011 and in terms of the said order entered into a sales contract dated 26.08.2011 for purchase of goods. That, the supplier and corporate debtor also entered into financial conditions dated 26.08.2011 for the said sales contract. That, in terms of the said financial conditions dated 26.08.2011, the corporate debtor was required to make 20% down payment and remaining 80% in deferred 8 equal and consecutive installments. On 29.01.2012, for the remaining amount, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l creditor has annexed to the application documents like; copy of demand notice (page 21-88), purchase order dated 15.08.2011 (page 89-95), sales contract dated 26.08.2011 (page 96 to 108), financial conditions dated 26.08.2011 (page 109-111), bill of exchanges (page 112-119), invoices (page 120-123) etc. 8. The respondent/corporate debtor filed affidavit in reply inter alia stating that it has filed/lodged online complaints against Dena Bank, Bank of Baroda and Reserve Bank of India with respect to its pending applications. The corporate debtor has further stated that its intentions are not mala fide and ready to open escrow account or willing to enter any sort of arrangement to make payment in such a manner as may be directed by this b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'operational debt'. 16. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter the appointment of Interim Insolvency Resolution Professional. This Adjudicating Authority direct the Interim Resolution Professional to make public announcement of initiation of Corporate Insolvency Process and call for submission of claims under Section 15 as required by Section 13(1)(b) of the Code. 19. From the above stated discussion and on the basis of material available on record it is evident that the corporate debtor has committed default in payment of operational debt and, therefore, it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code. 20. The petition is, therefore, admitted and the moratorium is declared for prohibiting all of the following in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passes an order for liquidation of corporate debtor under Section 33 as the case may be. 23. The applicant/operational creditor has not proposed name of the Interim Resolution Professional. Therefore, this Adjudicating Authority hereby appoint Shri Sushil Vishwakant Tewary, 11, Pahelgaon Bungalows, Premchandnagar Road, Bodakdev, Ahmedabad 380 054 (sushiit@hotmail.com) (Mobile: 9898095610) having registration No. IBBI/IPA-001/IP-P01288/2018-19/12049 to act as an interim resolution professional under Section 13(1)(c) of the Code. 24. This Petition is accordingly admitted. 25. Communicate a copy of this order to the applicant, Corporate Debtor, Registrar of Companies and to the Interim Resolution Professional. 26. Registry is dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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