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TMI Blog2022 (9) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... ees and eighty three paisa only). 2. The averments in brief of the Application and Written Submission are that; (i) The Petitioner formally known as Green Ark Enersol Pvt.Ltd, herein after referred to as "Operational Creditor", is a Private Limited company which has its registered office at Hyderabad, is in business supplying of high performance GSM/GPRS,GPS,RF, Wi-Fi, Bluetooth, IoT and customised products. (ii). The Respondent, herein after referred to as "Corporate Debtor", is a Private Limited Company incorporated under the Companies Act, 1956. (iii). The Corporate Debtor had approached the Operational Creditor for supply of AMR based modems along with antenna and Communication cables and raised two purchase orders with Operational Creditor. (iv). The Operational creditor supplied 16130 AMR modules along with antenna and communication cables for which the Operational Creditor had raised invoices on the name of the Corporate Debtor. Further submitted that the Corporate Debtor failed to clear the dues as per the purchase order dated 03.11.2015. (v). The Corporate debtor has acknowledged the supply of 16130 AMR modems and out of these, 5000 modems have been installed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of Rs.6,26,32,001/- and another Rs 22,85,641/- on installation of only 2945 modems. Further submitted that the clause 16 of the purchase states that all supplies shall be made within 60 days which was not complied by the Green Ark. (g) That the Green Ark has defaulted on its obligation under the purchase order and therefore not entitled to any payments. The corporate debtor and Green Ark had come to mutual understanding that the remaining payment shall be done by TANGEDCO on completion of the remaining work by the Green Ark. (h) Further submitted that there is no admitted liability and serious disputes exist between Corporate Debtor and Greek Ark with regard to the quality of work done under the purchase order. Hence, prayed this tribunal to dismiss the present application. 5. In the light of the contest as mentioned above, the following points framed for consideration by this Adjudicating Authority: 1. Whether the documentary evidence furnished with application shows that the aforesaid debt is due and payable and has not yet been paid? 2. Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority may reject an application and not otherwise." (2). In re, Mobilox Innovations Private Limited (supra), Hon'ble Supreme Court of India, has held that; "It is, thus, clear that so far as an operational creditor is concerned, a demand notice of an unpaid operational debt or copy of an invoice demanding payment of the amount involved must be delivered in the prescribed form. The corporate debtor is then given a period of 10 days from the receipt of the demand notice or copy of the invoice to bring to the notice of the operational creditor the existence of a dispute, if any. We 72 have also seen the notes on clauses annexed to the Insolvency and Bankruptcy Bill of 2015, in which "the existence of a dispute" alone is mentioned. Even otherwise, the word "and" occurring in Section 8(2)(a) must be read as "or" keeping in mind the legislative intent and the fact that an anomalous situation would arise if it is not read as "or". If read as "and", disputes would only stave off the bankruptcy process if they are already pending in a suit or arbitration proceedings and not otherwise." "It is clear, therefore, that once the operational creditor has filed an application, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of receiving the demand notice corporate debtor has not chosen to send any reply that apart no record has been filed by the corporate debtor showing that it has raised the dispute as regards to the quality of services rendered by the operational creditor before receipt of demand notice. 10. Therefore, it is evident from our discussion above that documentary evidence placed clearly shows that the debt is due and payable by the Corporate Debtor. However, the same has not been paid. We therefore allow the petition and hereby ordering the petition to initiate CIRP. 11. The Operational Creditor has filed memo and requested this Adjudicating Authority to appoint one for the Insolvency Resolution Professionals as IRP. The IBBI has recommended a panel of Insolvency Professionals for appointment as Insolvency Resolution Professional for the period from July 1st 2022 to December 31st 2022 in compliance with Section 16(3)(a) of the Code in order to avoid delay. Accordingly, this Tribunal appoints Mr. Kotoju Vasudeva Rao, having Registration No. IBBI/IPA-002/IP-N00889/2019-2020/12924, email: vasurkotoju[at]gmail[dot]com, as IRP. As per the IBBI website, his AFA is valid upto 20-Mar-23. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of this order till the completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under Sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, whichever is earlier. (f) That the public announcement of the initiation of Corporate Insolvency Resolution Process shall be made immediately as prescribed under section 13 of Insolvency and Bankruptcy Code, 2016. (g) The petitioner is directed to deposit a sum of Rs.1,00,000/- with the interim resolution professional to meet out the initial CIRP expenses to perform the functions assigned to him in accordance with Regulation 6 of IBBI regulation, 2016. The initial expenditure incurred by IRP shall, however, be subject to the approval by the COC, in its first meeting. (h) Registry is directed to send a copy of this order to the Operational Creditor and IRP appointed in this case. (i) Accordingly petition is admitted. (j) The Operational Creditor is directed to communicate this order to the IRP appointed in this case. (k) The Registry of this Tribunal is directed to send a copy of this order to the Registrar of Companies, Hyde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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