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Judgment
M.M.KUMAR, PRESIDENT
The Petitioner claiming to be an Operational Creditor has filed the instant Petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') with a prayer to trigger Corporate Insolvency Resolution Process in respect of respondent Reom Infrastructure and Construction Limited (for brevity the 'corporate debtor'). It is appropriate to mention that the 'financial creditor' is a company incorporated under the provisions of the Companies Act, 1956.
The Corporate Debtor - Reom Infrastructure and Construction Limited was incorporated on 22.02.2007 under the provisions of the Companies Act, 1956. The identification number of the Corporate Debtor given is CIN U45200DL2007PLC159642.
It is submitted by the petitioner that in August 2016 the respondent- corporate debtor issued a purchase order to the petitioner- operational creditor and pursuant to the same the petitioner supplied and delivered all products. The petitioner- operational creditor then raised an invoice amounting to Rs. 23,83,660/- (Page 21).
The precise case of the Petitioners is that the total amount in default due to the operational creditor by the corporate debtor as on 28.05.2018 is Rs. 32,72,391/- (including the principal amount of Rs. 23,83,660/- along with simple interest @ 24% amounting to Rs. 8,88,681/-). It is further submitted that the default occurred on 07.11.2016 (Invoice No. MPSI16-0212). The computation of the default in tabular form is placed on record (Annexure-C).
In Part-IV of the Petition, the Operational Creditor has given the details of the total amount of the debt along with the dates of disbursement. In Column 2 of Part-IV of the Application the Operational Creditor has mentioned the amount claimed in default and the date of the default.
In Part V of the Petition the Operational Creditor has mentioned the purchase orders, invoices and other related documents under which the operational debt has become due.
It is further submitted by the petitioner – operational creditor that it had served a demand notice to the respondent- corporate debtor dated 01.06.2018 in accordance with the provisions of the Insolvency and Bankruptcy Code, 2016 (Annexure-B). The respondent- corporate did not reply to the said notice. The tracking report of the demand notice along with the delivery challans is also placed on record vide an additional affidavit filed on 20.05.2019 (Exhibit-A and Exhibit-B). The petitioners have also placed on record the certificate of incorporation pursuant to the change of name of the respondent-corporate debtor (Exhibit-G).
Despite serving notices the Respondents have not put in appearance nor there is any reply on their behalf. The Petitioners-Operational Creditor have placed on record sufficient material to show that goods were supplied, purchase order made and invoices issued thereof.
In view of the above this Tribunal is inclined to admit this application and accordingly initiate the process of CIRP of the Respondent. Since the Applicant has not named the insolvency resolution professional, this Tribunal based on the list furnished by Insolvency and Bankruptcy Board of India appoints Mr. Satya Prakash Gupta, with registration number IBBI/IPA-001/IP-P00737/2017-18/11234 (email = spgfinance@gmail.com) as the Interim Resolution Professional ("IRP") subject to the condition that no disciplinary proceedings are pending against such an IRP named and disclosures as required under IBBI (insolvency Resolution Process for Corporate Persons) Regulations, 2016 are made within a period of one week from the date of this order. 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 Respondent:
a. The institution of suits or continuation of pending suits or proceedings against the respondent 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 respondent 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 respondent in respect of its property including any action under the Securitization 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 respondent.
However, during the pendency of the moratorium period in terms of Section 14(2) and 14(3) as extracted hereunder:
(2)The supply of essential goods or services to the respondent 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.
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 respondent under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be.
The Applicant is directed to pay a sum of Rs.2,00,000/- to the interim resolution professional ("IRP") upon the IRP filing the necessary declaration form as required under the provisions of the Code to mete out the expenses to perform the functions assigned to him in accordance to Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
Based on the above terms, the Application stands admitted in terms of Section 9(5) of IBC, 2016 and the moratorium shall come in to effect as of this date. A copy of the order shall be communicated to the Applicant as well as to the Respondent above named by the registry. In addition a copy of the order shall also be forwarded to IBBI for its records. Further the IRP above named who is figuring in the list of resolution professionals forwarded by IBBI be also furnished with copy of this order forthwith by the registry.
ORDER M.M. KUMAR, PRESIDENT
This order shall dispose of (IB)-1088(ND)/2018 and (IB)-1087(ND)/2018.
The necessity of going into the merit of the claim made by the petitioner in above mentioned petition is obviated because against the Corporate Debtor we have admitted another petition namely Chryso India Private Limited vs. Room Infrastructure and Construction Ltd. [(IB)-945(ND)/2018] vide order dated 19.07.2019. As per the provisions of Section 11 of the Insolvency and Bankruptcy Code, 2016 another Corporate Insolvency Process cannot be initiated against a corporate debtor that is undergoing a corporate insolvency resolution process. However, it is needless to mention that the petitioners would be entitled to file their claims before the Insolvency Professional namely Mr. Satya Prakash Gupta (Registration number IBBI/IPA-001/IP-P00737/2017-18/11234) E-mail-id spgfinance@gmail.com in accordance with law which shall be duly considered.
The office is directed to communicate a copy of the order to the Interim Resolution Professional, Operational Creditors and the Corporate Debtor immediately.
The above mentioned petition is disposed of in the above terms.