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Judgment
Under consideration is an application filed under Section 9 of the IBC, 2016 with the prayers to initiate Corporate Insolvency Resolution Process ('CIRP'), declare moratorium and appoint Insolvency Resolution Professional ('IRP').
The Operational Creditor ('OC') has claimed an amount of Rs.7,00,300/- as outstanding on account of material supplied on 7th July, 2018, pursuant to the Purchase order that was issued by the Corporate Debtor ('CD') on 29th June, 2018. The Purchase order is placed on record. The Invoice dated 07.07.2018 is also placed on record. The OC has sent Notice U/Sec. 8 of the IBC, 2016 to the CD, copy of which is placed at page-18 of the typed set filed with the application to which no reply has been given by the CD. The OC has complied with the provisions of Sec. 9(3)(b) and (c) by placing on record an affidavit wherein under para-2 it is deposed that no Notice has been received from the CD regarding any dispute of unpaid operational debt. The copy of the ledger is also placed on record.
The CD has filed the reply and taken the defence that the goods supplied were just raw-material/input for the finished goods of the CD and any shortfall in the quantity of goods supplied by the OC can severely affect the quality and standard of the finished goods of the CD. It is further recorded in the reply that after supply of goods, the CD realized that the same were defective and no opportunity was granted by the OC for testing and verifying the material supplied, therefore, the OC was required to rectify the defects but despite several reminders, no action has been taken by the OC in that direction. Based on this, it is prayed that the petition filed u/Sec.9 of the IBC be dismissed.
A clarification was sought by this Bench from Ld. Counsel for the CD as to whether or not any debit note was raised or any communication was sent to the OC prior to the Notice issued u/Sec.8 of the IBC,2016 to bring to the notice of the OC the fact about supply of defective goods as alleged. The Counsel for the CD fairly admitted that neither debit note nor written communication was sent but verbal communications were exchanged. The Counsel for the CD submitted that company is not in a position to make the payment as claimed by the Operational Creditor. The defence raised by the CD appears to be hollow and spurious and therefore stands rejected.
The OC has fulfilled all the requirements of law and proposed the name of IRP after seeking his consent in Form-2, which is placed at page-30. This Bench is satisfied that the CD has committed default in making payment of the outstanding debt as claimed by the OC. Therefore, Application is admitted and the commencement of the CIRP is initiated, which shall ordinarily be completed within the outer limit of 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 CIRP, 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 CD 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 CD 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 CD 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 CD.
The supply of essential goods or services of the CD 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.
Shri Pankaj Kumar Singhal, is proposed by the OC for appointment as an Interim Resolution Professional ('IRP'), is hereby appointed as IRP. There is no disciplinary proceeding pending against the IRP as is evidenced from Form-2. The IRP is directed to take charge of the Respondent CD's management immediately. He is directed to cause public announcement as prescribed under Section 15 of the IBC, 2016 within 3 (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 IBC, 2016. The Directors of the CD, its Promoters or any person associated with the Management of the CD 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 IBC, 2016.
The OC and the Registry are directed to send the copy of this Order to IRP, so that he could take charge of the CD's assets etc., and make compliance with this Order as per the provisions of IBC, 2016. Mr. Pankaj Kumar Singhal registered with IBBI having registration number IBBI/IP-002/IP-00532/2017-18/11561; E-mail ID: aprlegalindia@gmail.com; Phone No.011-27307634 Mobile No.:9871357353, 9899935879 Address: A-233, G Floor, Bunkar Colony, Ashok Vihar IV, New Delhi-110052 Also at D.D.A. Janta Flats,Ashok, Vihar, Phase- III, New Delhi-110052.
The Registry is directed to communicate this Order to the OC,IRP and the CD with immediate effect.
The Order stands dictated and pronounced in the open court in the presence of the Ld. Counsels for the parties.