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TMI Blog2022 (9) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... ered with RoC, NCT of Delhi and Haryana and therefore, is within the jurisdiction of this Adjudicating Authority. 2. The Operational Creditor/Applicant has averred as follows:- a. That it is a Company engaged in the business of manufacturing and export of C.R. Sheets, Mild Steel/Sheet/Carbon Steel ERW Black and Galvanized Pipes/Tubes, Module Mounting Structure etc. and that it supplied Module Mounting Structure to the Corporate Debtor during the period of 02.01.2018 to 15.01.2018 and accordingly raised invoices to the tune of Rs. 51,96,280/- against the same on the Corporate Debtor. The Corporate Debtor though made payment of some of these invoices upto 12.06.2018 but thereafter started defaulting to make payments against the said invoices. b. It is submitted that on 08.06.2019, the Operational Creditor sent Demand Notice dated 06.06.2019 under FORM 3 on the registered address and other address of the corporate Debtor, which were duly received by the Corporate Debtor on 11.06.2019. c. It is further submitted by the Operational Creditor that the corporate debtor has replied to the notice issued by them vide reply dated 21.06.2019 and raised frivolous objections. The Operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Corporate Debtor in the manner stated in the Application filed by the Operational Creditor. Thus, it is apparent that the unpaid invoices for services rendered by the Operational Creditor and received by the Corporate Debtor, which constitute the Operational Debt remain uncontroverted and undisputed. It is further argued that the operational debt of the Corporate Debtor still stands due to nonpayment against the invoices furnished by the Operational Creditor. 5. The Corporate Debtor also submitted written submission and reiterated all the facts as stated in the reply affidavit, therefore, not repeated. In short, the corporate debtor raised objection regarding existence of pre-existing dispute in terms of section 5(6) of IBC, 2016 as the operational creditor withheld the consignment of goods, worth more than Rs. 1 crore and same is evident from email exchanged between the parties. It is argued that the invoices of the two separate entities namely, Brompton Private Limited and Berkeley Beauty Brands Private Limited are included in computation of alleged claim by the operational creditor. It is further stated that petition u/s. 9 of IBC, 2016 is merely a tool for recovery. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ambit of preexisting dispute. The corporate debtor has also sent demand notice to the operational creditor on the basis of invoice dated 09.05.2019 on 18.09.2019, which was replied by the operational creditor on 28.09.2019. We will also examine the nature of invoice dated 09.05.2019 raised by the Corporate Debtor. Furthermore, the corporate debtor has submitted that the Operational Creditor has issued the demand notice on 24.12.2019, however, on perusal of the pleadings, it is found that the operational creditor filed the present application on the basis of demand notice dated 06.06.2019, which was duly served on and replied by the Corporate Debtor on 22.06.2019 and therefore, this contention raised above has no basis. It is an admitted fact that the applicant in the present petition has supplied the goods; therefore, the applicant falls within the definition of the Operational Creditor. The debt and default are also not denied by the Corporate Debtor. The only issue left before this Adjudicating Authority is whether there was any 'pre-existing dispute' raised by the corporate debtor before issuance of section 8 notice by the Operational Creditor. In the present matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Adjudicating Authority is inclined to initiate the CIR Proceeding of the Corporate Debtor in view of the above finding. 7. The Operational Creditor has not proposed any name of any Insolvency Professional to be appointed as the IRP, therefore, this Adjudicating Authority appoints Mr. Rahul Khanna having Regn. No. - IBBI/IPA-002/IP-N01095/2021-2022/3581) (Email ID: [email protected]) as IRP from the list provided by IBBI. The IRP is directed to submit his consent and valid AoA with declaration that no disciplinary proceedings have been initiated against him forthwith. The IRP must take charge of the Respondent Corporate Debtor's management immediately. He is also directed to cause public announcement under section 15 of the IBC, 2016, within three days from date of receiving the copy of this order and call for submissions of claim in the manner as prescribed. 8. The moratorium is declared which shall have effect from the date of this order till the completion of CIRP, for the purposes referred to in section 14 of the IBC, 2016. It is ordered to prohibit all of the following, namely: a. The institution of suits or continuation of pending suits or proceedings against th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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