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Judgment
Per: Hon'ble Shri Narender Kumar Bhola, Member (Technical)
The present Petition is filed by Lee & Muirhead Private Limited i.e Operational Creditor against Corporate Debtor i.e Opus Industries Private Limited stating that corporate debtor had defaulted in paying Rs.32,24,048/- (Rupees Thirty Two Lakhs Twenty Four Thousand Forty Eight only). Hence this petition is filed under Section 9 of Insolvency and Bankruptcy Code, 2016, R/w Rule 6 of Insolvency & Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, seeking admission of the Petition, initiation of Corporate Insolvency Resolution Process, granting moratorium and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon.
The brief averments stated in the Petition are that:
a. The Operational Creditor inter-alia carries on business as consolidators of Cargo, Freight Forwarders and as custom House agents, having wide business Operations. The Operational Creditor by and on behalf of its customers, arranges for the shipment of cargo and clearance of cargo, that is imported into India both by sea and Air.
b. The operational creditor also attends to various procedural formalities in connection with the said import, including but not limited to filing of statutory documents with the authorities concerned with such shipment or transport, namely Customs Department, new Airport Authorities, port Authorities and container Terminals in India.
c. It is stated that Corporate Debtor approached the Operational creditor in and around May, 2014 to engage the services of the operational creditor for the purpose of aiding with custom clearance and attending to various other formalities pertaining to the imports made by the Corporate Debtor through the port of Chennai, Tamilnadu.
d. It is stated that upon the request made by the Corporate Debtor, Operational Creditor had duly entrusted that the containers 27 in number, had been brought into Chennai in and about June, 2014 had been cleared and had attended to the procedures associated with such clearance. The consignments had duly been transported from Chennai to the Corporate Debtor's premises to Andhra Pradesh.
e. It is stated that the Operational Creditor raised the invoices for the services rendered to corporate debtor between 8.7.2014 and 18.8.2014 towards customs duty, transport charges, FCL charges, CFS charges etc. The invoices totalling to a sum of Rs.2,02,79,079/- with an interest of 24%.
f. It is stated that the Corporate Debtor made part payments on different dates totalling Rs.1,86,30,260/- (Rupees One Crore Eighty Six Lakhs Thirty thousand two hundred sixty only). Thereby the Corporate Debtor is liable to pay the balance amount of Rs.16,48,819/-.
g. It is stated that despite several requests made by the Operational Creditor to the Corporate Debtor, he failed to clear the dues. Thus Operational Creditor having no other alternative filed a Civil Suit bearing O.S.No.2337 of 2016 before XVI Additional Judge, City Civil Court, Chennai for recovery of the due amount along with interest thereon, the said suit is decreed in favour of the Operational Creditor and the court passed a Judgment & Decree Dt.18.09.2017. By virtue of the said Judgment & Decree the Corporate Debtor is liable to pay an amount of Rs. 23,10,059/- (Rupees Twenty three lakhs ten thousand and fifty nine only) along with interest thereon.
h. It is stated that Corporate Debtor had not paid even after suffering with a decree and thereby the operational creditor issued a legal notice dated 24/11/2018. Despite receipt of the said notice dated 24/11/2018, the Corporate Debtor failed to pay the amount. The Corporate Debtor having availed services from the operational creditor instead of paying the amounts if suffered a lot and not giving any reply or payment to the operational creditor.
As per the Decree dated. 18.9.2017 the Corporate Debtor is liable to pay an amount of Rs. 23,10,059/- to the Operational Creditor. The Operational Creditor issued Rule 3 Notice Dated 7.12.2018 under IBC Code, which is duly served on the Corporate Debtor. Even after receipt of the said notice also Corporate Debtor neither paid the amount nor replied to the Operational Creditor hence filed the present petition.
The Operational Creditor filed Form-5. It is clear from the record that Operational Creditor sent Demand Notice in Form-3 to the corporate debtor to its address which is annexed to the petition at Pg No.154-166. Operational Creditor filed invoice copies at Pg No.120-126 to the petition. The Operational Creditor also filed copy of Judgement&Decree in O.S.No.2337/2016 , XVI ACJ, CCC, Chennai at Pg No.136-153. The Operational Creditor also filed copy of the Demand notice dated 07.12.2018 for payment of default amount along with postal receipts which is annexed to the petition at Pg No.167-170. Therefore, petition is liable to be admitted.
We have heard the counsel for operational creditor. This Petition is filed by operational creditor under section 9 of I&B Code. Operational creditor filed Form-5 and furnished the information with regard to the operational debt which is committed default by corporate debtor.
The notice was served on the corporate debtor. Postal track record is filed through Memo. Learned counsel contended that corporate debtor has not replied or failed to defend. The claim is submitted within period of time prescribed under Limitation Act, 1963. Thus, the claim is within limitation. There is no representation or reply by the Corporate Debtor. Corporate debtor was served with notice before admission however, corporate debtor remained absent and it did not contest the claim.
In view of the above we are of the considered view that the operational creditor has been able to establish un-disputed debt against corporate debtor and the corporate debtor has been in default with regard to the payment of dues to the operational creditor amounting to Rs.32,24,048/-. The Operational creditor is able to establish through documents that corporate debtor committed default of operational debt and there is no pre-existing dispute. Thus, this Petition is complete and is liable to be admitted.
The Operational Creditor proposes the name of Mr. P.V.Narayana Rao, as Interim Resolution Professional. The proposed IRP has given written consent in Form-2. He has also certified there are no disciplinary proceedings pending against him either with the Board or ICAI. He has also attached the Certificate of Registration. Accordingly, this Tribunal appoints Mr. P V Narayana Rao, having registration number IBBI/ IPA-001/ IP-P01706/ 2019-2020/12633, Mob No. 9949355122 e-mail id: [email protected] as Interim Resolution Professional.
Hence, the Adjudicating Authority admits this Petition under Section 9 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code, with following directions:-
The Bench hereby prohibits 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; Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under Securitization and Reconstruction of Financial Assets and Enforcement of Security interest Act, 2002 (54 of 2002); the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate Debtor;
That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period.
That the provisions of sub-section (1) of Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.
The Interim Resolution Professional shall perform all his functions strictly which are contemplated, by Sections 15, 17,18,19,20, and 21 of the Code. It if further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other person associated with the management of the Corporate Debtor are under legal obligation under Section 19 of the code to extend every assistance and cooperation to the interim resolution professional as may be required by him in managing the affairs of the Corporate Debtor.
That the order of moratorium shall have effect from 27.09.2019 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.
That the Public announcement of Corporate Insolvency Resolution Process shall be made immediately as specified under section 13 of the code.
Accordingly, this Petition is admitted.