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TMI Blog2022 (3) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Limited Company. From Part - II of the application it is seen that the Corporate Debtor is a Limited Company incorporated on 27.07.2015 with CIN: U74999TN2015PTC101559 and the registered office of the Corporate Debtor as per the Application is stated to be situated at A3 Mars Foundations, 7/4 Rangarajapuram 1st Street, Saidapet, Chennai - 600 015. 3. From Part - III of the Application it is seen that the Applicant has not proposed the name of the IRP and left it to the discretion of this Tribunal to appoint the same. From Part - IV of the Application, it is seen that the Operational Creditor has claimed a total amount of Rs. 8,02,39,787/- including interest at the rate of 24% p.a. 4. The Learned Counsel for the Operational Creditor submitted that they supplied IT, Non - IT and Telecom products to the Corporate Debtor and later upon the request of the Corporate Debtor, the Operational Creditor has granted credit facility to the Corporate Debtor. Also it was submitted that for the same, unconditional and irrevocable Letter of Personal Guarantee Agreement dated 06.06.2017 was executed in favour of Operational Creditor by Mr. S. Selvanayagam in the capacity as the Director of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. The Learned Counsel for the Operational Creditor submitted that they issued a Demand Notice to the Corporate Debtor as stipulated under Section 8 of IBC, 2016 on 17.02.2020, however the same was returned with an endorsement 'Left'. Thereafter, another Demand Notice dated 19.11.2020 was issued to the Corporate Debtor by e-mail and Speed Post, which was also returned with an endorsement 'unclaimed'. Further, it was submitted that the Operational Creditor has sent Demand Notice to the Key Managerial Personnel of the Corporate Debtor vide email dated 17.02.2020 and 19.11.2020 pursuant to Rule 5(2)(b) of the Insolvency and Bankruptcy (Adjudicating Authority) Rules, 2016. However, it was submitted that the Corporate Debtor has not sent any response to the said Demand Notice. 12. The Operational Creditor has also filed an Affidavit as mandated under Section 9(3)(b) of IBC, 2016 stating that after the issuance of Demand Notice, the Corporate Debtor has neither paid the 'operational debt' nor bought to the notice of the Corporate Debtor the dispute if any prior to the issuance of the Demand Notice. Under the said circumstances, the Learned Counsel for the Ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld as follows; "37. One of the essential features for consideration of an Application under Section 9 of I & B Code is service of notice. A mere perusal of the paragraph 11 of the Impugned Order passed by the Adjudicating Authority patently indicates that a perusal of the pleadings showed that the proper 'service' was effected on the registered office of the 2nd Respondent/Corporate Debtor situated at D-410, Pocket 16, Sector VII, Rohini, New Delhi - 110085. Also, it was observed by the Adjudicating Authority that there was no change in the address of the 'Corporate Debtor' in the 'Ministry of Corporate Affairs Record' which also shows the same address. Even the Resolution passed by the 'Corporate Debtor' on 27.03.2019 had shown the same 'Registered Office' address. Therefore, the Adjudicating Authority had very rightly adverted to Section 27 of the General Clauses Act and Section 20 of the Companies Act, 2013 read with Rule 35 of the Companies (Incorporation) Rules, 2014 in and by which the 'service' is to be effected on the 'Registered Office' address and that process was carried out. Therefore, this Tribunal holds that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised during the period commencing from 28.04.2016 to 23.05.2016 and the last payment made by the Corporate Debtor to the Operational Creditor on 30.06.2018. The present Application under Section 9 of IBC, 2016 has been filed by the Operational Creditor before this Tribunal on 16.12.2020 and as such it falls well within the period of limitation. Further, the default arising in the present Application is has happened much before the advent of Covid-19 and hence the Corporate Debtor also cannot seek shelter under Section 10A of IBC, 2016. Under the said circumstances, this Tribunal is left with no other option than to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor, which ordinarily shall get completed within 180 days, reckoning from the day this order is passed. 20. As a consequence of the Application being admitted in terms of Section 9(5) of the Code, the moratorium as envisaged under the provisions of Section 14(1) and as extracted hereunder shall follow in relation to the Corporate Debtor: a. The institution of suits or continuation of pending suits or proceedings against the respondent including exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) a surety in a contract of guarantee to a corporate debtor. 22. The duration of the period of moratorium shall be as provided in Section 14(4) of the Code and for ready reference reproduced as follows: (4) The order of moratorium shall have effect from the date of such order till the completion of the Corporate Insolvency Resolution Process: Provided that where at any time during the Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the Resolution Plan under sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or Liquidation Order, as the case may be. 23. Since the Operational Creditor has not named the Insolvency Resolution Professional, this Tribunal based on the latest list furnished by Insolvency and Bankruptcy Board of India applicable for the period between Jan 2022 - June 2022 appoints Mr. Kabiladoss R. having registration number IBBI/IPA-001/IP-P02412/2021-2022/13662 as the "Interim Resolution Professional" subject to the condition that no disciplinary proceedings are pending against such an Interim Resolu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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