S.
No.",Date,Invoice Number,"Amount
(Rs.)
1,"23rd June,
2016","2016-
2017/15/187","6,060.00
2,"23rd June,
2016","2016-
2017/15/192","5,680.00
3,"24th June,
2016","2016-
2017/15/200","2,990.00
4,"25th June,
2016","2016-
2017/15/213","2,200.00
5,"30th June,
2016","2016-
2017/15/257","6,302.00
6,"8th July, 2016","2016-
2017/16/064","7,140.00
,,Total Amount,"30,372.00
was further submitted that out of 34 invoices attached with the petition from page No. 26 to 60, only 6 invoices on page 45 to 50 are served by the",,,
Operational Creditor which are acknowledged by the corporate Debtor by stamping the invoices.,,,
8. We have gone through the application, reply and the documents filed by both the parties and heard the arguments and perused written submissions",,,
made by both the parties.,,,
9. At this juncture, we would like to refer Section 8 of the Code and the same is quoted below:-",,,
8. Insolvency resolution by operational creditor-",,,
(1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding",,,
payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed.,,,
(2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring",,,
to the notice of the operational creditor -,,,
(a) existence of a dispute, l[if any, or] record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in",,,
relation to such dispute;,,,
(b) the 2[payment] of unpaid operational debt-,,,
(i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or,,,
(ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor.,,,
Explanation. - For the purposes of this section, a ""demand notice"" means a notice served by an operational creditor to the corporate debtor demanding",,,
3[payment] operational debt in respect of which the default has occurred.""",,,
Mere plain reading of the provision shows that the Corporate Debtor shall within a period of 10 days of the receipt of the demand notice of copy of,,,
invoices mentioned in Section 8(2), bring to the notice of the Operational Creditor existences of disputed if any or record of pendency of suit or",,,
arbitration proceeding filed by the receipt of such notice or invoice in relation to such dispute but admittedly this has not been done by the Corporate,,,
Debtor.,,,
10. Now at this juncture, we would like to refer the decision of Hon'ble Supreme Court in ""Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P)",,,
Limited- 2017 1 SCC OnLine SC 353"", in which the Apex Court analysed the meaning of dispute with respect to Operational Creditors and observed:",,,
24. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e.,",,,
on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid",,,
operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the,,,
Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be (Section 8(1)). Within a",,,
period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the",,,
existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation,,,
to such dispute (Section 8(2)(a)). What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing -,,,
i.e. it must exist before the receipt of the demand notice or invoice, as the case may be.........""",,,
25. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine:",,,
(i) Whether there is an ""operational debt"" as defined exceeding Rs. 1 lakh? (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 one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must",,,
follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the",,,
case may be, depending upon the factors mentioned in Section 9(5) of the Act.""",,,
11. In the light of above discussion, when we shall consider the case in hand then we find that admittedly no reply was sent to the Demand Notice and",,,
hence no dispute was raised under Section 8 sub Section 2 of the Code and the amount claimed by the Operational Creditor has not been paid by the,,,
Corporate Debtor and we have also noticed that the application is complete. We further find that the amount claimed by the Operational Creditor is,,,
more than Rs. 1 lakh which is the minimum threshold limit fixed under IBC, 2016 and the present petition being filed on 02.08.2019 is within limitation,",,,
being within three years from the date of the cause of action. Therefore, under such circumstances, we have no option but to reject the contention of",,,
the Corporate Debtor that the application is not maintainable and it is liable to be rejected rather we are of the considered view that the Operational,,,
Creditor has succeeded to establish this fact that he raised the last invoice on 20.09.2016, the Corporate Debtor has defaulted in paying the dues and",,,
the present application is within limitation as it was filed on 02.08.2019.,,,
12. Considering the aforesaid circumstances, this Adjudicating Authority is inclined to admit this petition and initiate CIRP of the Respondent.",,,
Accordingly, this petition is admitted. A moratorium in terms of Section 14 of the Code is imposed forthwith in terms of the following:-",,,
(a) the institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or",,,
order in any court of law, tribunal, arbitration panel or other authority;",,,
(b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein;",,,
(c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action",,,
under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;",,,
(d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.,,,
(2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during,,,
moratorium period.,,,
(3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any,,,
financial sector regulator.,,,
(4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process.""",,,
13. The Operational Creditor has proposed the name of Mr. Manohar Lal Vij as the IRP. His details are as registration No. IBBI/IPA-001/IP-,,,
P01480/2018-19/12269, email: mlvij1956@gmail.com, Mob.: +919811029537. The consent of the Mr. Manohar Lal Vij is on record along with the",,,
copy of his certificate and there is no disciplinary proceeding pending against the proposed IRP. We accordingly confirm his appointment as the IRP.,,,
He shall take such other and further steps as are required under the statute, more specifically in terms of Section 15, 17 and 18 of the Code and file",,,
his report.,,,
14. The Operational Creditor is directed to deposit a sum of Rs. 2 lakhs to meet the immediate expenses of IRP. The same shall be fully accountable,,,
by the IRP and shall be reimbursed by the CoC, to the Operational Creditor to be recovered as CIR costs.",,,
15. Renotify this case for report of the IRP.,,,
Pronounced today under Rule 151 of the NCLT Rules 2016 as Mrs. Saroj Rajware, Hon'ble Member (T) is not holding court today.",,,
