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Judgment
CH. MOHD SHARIEF TARIQ, MEMBER (JUDICIAL)
Under Adjudication is CP/1258/IB/2018 that has been filed by the Operational Creditor under Section 9 of the Insolvency & Bankruptcy Code 2016 (in short, 'I&B Code, 2016') r/w Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The prayer made is to admit the Application, to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, declare moratorium and appoint Interim Resolution Professional (IRP).
As seen from record, the Corporate Debtor was proceeded ex-parte on 09.04.2019. Heard the Counsel for the Operational Creditor and perused the pleadings including the documents placed on file.
The Operational Creditor has claimed an amount of Rs.14,47,135/- as principal amount along with interest @ 24% interest per annum from 06.02.2016, till the date of actual payment in terms of the Power Purchase Agreement dated 05.01.2016.
The brief facts of the case are that the Operational Creditor is a Power Producer operates a Thermal Power Generating Plant for its own purposes as well as sells it to various consumers. On 05.01.2016, the Operational Creditor and the Corporate Debtor have entered into the Power Purchase Agreement initially for 24 months from January, 2016 to October 2017 wherein the Operational Creditor agreed to supply 10,08,000 Units (1.4 MW/Hr) of power per month to the Corporate Debtor at the meter provided in the Generator Switchyard of the Operational Creditor at RTC basis in 5 Slots,. The Agreement was extendable for future period on mutually agreed terms between the parties.
Clause 8.2 of the said Agreements provides that the Corporate Debtor shall purchase the power made available by the Operational Creditor at the delivery point for the consumption at a purchase price of Rs.5.37p per unit including miscellaneous charges.
Clause 12.5 of the said Agreement provides that if there is delay in making payment, then, interest @ 2% per month will be calculated for the period of delay expressed in number of days on unpaid amount of the Invoice, till the recovery of all dues including interest on delayed payment.
Pursuant to the said Agreement dated 05.01.2016, the Operational Creditor has supplied the power to the Corporate Debtor and raised the Invoice for an amount of Rs.14,47,135.20 p. However, nothing has been paid by the Corporate Debtor to the Operational Creditor.
The Operational Creditor has issued a Demand Notice dated 11.07.2018 under Section 8 of the I&B Code, 2016 to the Corporate Debtor, wherein the particulars of the operational debt due are mentioned, which was delivered on 17.07.2019, to which no reply was given by the Corporate Debtor.
The Operational Creditor has complied with Section 9 (3) (b) & (c) of the I&B Code, 2016, by filing Affidavit, wherein under Para 4, it has been deposed that the Corporate Debtor has not given any notice of dispute or a pendency of a suit or arbitration proceedings in relation to the unpaid of operational debt. The Affidavit is placed at pages 8 and 9 of the typed set filed with the Application.
The Operational Creditor has fulfilled all the requirements of law for admission of the Application. This Authority is satisfied that the Corporate Debtor has committed default in making payment of the outstanding debt claimed by the Operational Creditor. Therefore, Application is admitted and the commencement of the Corporate Insolvency Resolution Process is ordered, which ordinarily shall get completed within 180 days, reckoning from the day this order is passed.
The moratorium is declared which shall have effect from the date of this Order till the completion of Corporate Insolvency Resolution Process, for the purposes referred to in Section 14 of the I&B Code, 2016. It is ordered to prohibit all of the following, namely :-
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 the Securitisation 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 the possession of the corporate debtor.
The supply of essential goods or services of the Corporate Debtor shall not be terminated or suspended or interrupted during moratorium period. The provisions of Sub-section (1) of Section 14 shall not apply to such transactions, as notified by the Central Government.
The Operational Creditor has not proposed the name of IRP, therefore, Mr. Madurai Sundaram Sankar, is appointed as IRP, whose name has been mentioned in the Panel of Insolvency Professionals recommended by the IBBI, there is no disciplinary proceedings pending against the IRP. The IRP is directed to take charge of the Respondent Corporate Debtor’s management immediately. He is also directed to cause public announcement as prescribed under Section 15 of the I&B Code, 2016 within three days from the date the copy of this order is received, and call for submissions of claim in the manner as prescribed.
The IRP shall comply with the provisions of Sections 13 (2), 15, 17 & 18 of the I&B Code. The directors of the Corporate Debtor, its promoters or any person associated with the Management of the Corporate Debtor are/is directed to extend all assistance and cooperation to the IRP as stipulated under Section 19, so that he could discharge his functions under Section 20 of the I&B Code, 2016.
The Operational Creditor and the Registry are directed to send the copy of this Order to IRP, so that he could take charge of the Corporate Debtor's assets etc., and make compliance with this Order as per the provisions of I&B Code, 2016.
The Registry is directed to communicate this Order to the Operational Creditor, the Corporate Debtor and the concerned RoC. The address details of the IRP are as follows: -Mr. Madurai Sundaram Sankar, Reg.No. IBBI/IPA-001/IP-P00770/2017-2018/11315 Email ID: [email protected]
Order is dictated and pronounced in open Court in the presence of the Counsel for Operational Creditor.