TaxTMI 
TaxTMI 
2018 (11) TMI 1538
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....orated on 17.08.2011 under the provisions of the Companies Act, 1956 having its registered office at office No. 202, Kh. No. 548, First Floor, Mahipalpur, New Delhi-110037. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the place, is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of section 60 of the Code. 3. The applicant, M/s. Globe Express Services Private Limited, is a company incorporated under the provisions of the Companies Act, 1956 having its registered office at 204- 206, Anurag Business Centre, Off Waman Tukaram Patli Marg, Chembur, Mumbai-400071. 4. Shri Nitin Kapoor, working as Country Head in applicant company was duly authorized vide Board Resolution dated 05.10.2017 of the applicant company, to file the present application on behalf of the applicant for initiation of Corporate Insolvency Resolution Process against the respondent corporate debtor in terms of the provisions of the Code. 5. It is the case of applicant that in and around July 2017, the resp....
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....placed on record a certificate dated 06.11.2017 issued by HDFC Bank certifying that no credit has been received in the account of applicant from the respondent company from 18.07.2017 to 26.10.2017. It is further mentioned in the certificate that three cheques issued by the respondent company have been returned because of payment stop instruction by drawer and on account of availability of insufficient funds in the relevant account. 11. The matter came-up for hearing for the first time on 22.11.2017 and was re-notified to 05.12.2017 as no one appeared on the first date of hearing. On the subsequent date of hearing on 05.12.2017, Mr. Naresh Sharma Director of the respondent company appeared in person and accepted notice. A copy of the paper book was supplied to him in the court and two weeks time was allowed to the respondent to file reply. Subsequently, neither the director nor any other person appeared on behalf of the respondent nor any reply was filed by the respondent corporate debtor in the matter. Consequently, the respondent was proceeded ex parte vide order dated 29.01.2018, which is reproduced below for ready reference: "Mr. Naresh Sharma, Director of the respo....
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....non-prosecution as the petitioner failed to appear on consecutive dates of hearing on 27.02.2018 and 21.03.2018. The petition however was restored on 11.04.2018 with a direction on the petitioner to file clarification in compliance of order dated 13.02.2018. 14. Applicant has filed affidavit on 27.04.2018 with the following clarification: "3. That it is submitted that on Page 2 of the Application as filed with the Hon'ble Adjudicating Authority, the details of the Authorised Representative of the Operational Creditor is rightly mentioned as Mr. Nittn Kapoor. The same even though contained in the heading "Particulars of the Corporate Debtor' pertains to the details of Operational Creditor in the relevant part. The same is in sync with the Form 5 as provided under the Insolvency and Bankruptcy Code (Application to Adjudicating Authority) Rules, 2016. 4. The entry at Page 13 of the Application is an inadvertent typographical error that mentions the title as Authorised Representative of the 'Corporate Debtor' instead of 'Operational Creditor'. It is specified, as is also evident from the Application, that the Authorized Representative that has filed the present App....
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....ved by the Applicant Company from the Respondent Company till the present date. A copy of the Bank Statement of the Applicant Company from July 2017 till March 2018 along with the ledger account of the Respondent Company as maintained by the Petitioner Company is annexed herewith and marked as Annexure B (Colly)." 15. Besides in compliance of the order dated 24.05.2018 applicant filed amendment application by removing the following typographical mistakes: "In Para 2 of the Synopsis which presently reads as": "The Petitioner Company was incorporated under the Companies Act, 1956 and is engaged in the business of inter alia. The present Petition has been filed through Mr. Nittn Kapoor, Country Head of M/s. AGI Cargo Pvt. Ltd." The same be substituted with the following: "The Petitioner Company was incorporated under the Companies Act, 1956 and is engaged in the business of ocean and air freight forwarding. The present Petition has been filed through Mr. Nittn Kapoor, Country Head of M/s. Globe Express Services Pvt. Ltd." That after Para F, the following Para be supplemented by amendment: "F1. That various cheques were issued to....
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....resolution professional to act as an interim resolution professional. (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if- (a) the application made under sub-section (2) is complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if- (a) the application made under sub-section (2) is incomplete; (b) there has been repayment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for p....
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....ce of a dispute, if any, and 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 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 payment of the operational debt in respect of which the default has occurred." 20. Admittedly, operational creditor issued notice under sub-section (1) of section 8 of the Code to the Corporate Debtor. However, despite of receipt of such notice, the corporate debtor had not disputed the claim nor submitted any reply in terms of sub-section (2) of section 8 of the Code. In the circumstances application under section 9 of the Code has been filed in Form-5, where in it was specifically mentioned that no reply has been filed by corporate ....
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....he services rendered by the applicant company. Since the claim of applicant is against services rendered to the corporate debtor, the applicant comes within the definition of 'operational creditor'. 25. Needless to say that the expressions "Operational Creditor" and "Operational debt" have been defined in Section 5 (20) and 5 (21) of the Code, which are reproduced below. "5. In this part, unless the context otherwise requires, .......................................................................................................................... .................. (20) "operational creditor" means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred; (21) "operational debt" means a claim in respect of the provision of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority;" 26. From the definition of "operational creditor" and "operational debt", it can be seen that the following persons can claim ....
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....ional Creditor is entitled to claim its dues towards the goods supplied to the corporate debtor and there has been a default in payment of the operational debt. Besides the invoices raised and the amount claimed by the operational creditor have not been disputed by the respondent corporate debtor. It is also seen that no disciplinary action is pending against the proposed IRP. Therefore, on fulfillment of the requirements of section 9(5)(i)(a) to (e) of the Code, the present application is admitted. 32. Mr. Mohd. Nazim Khan, having registration number IBBI/IPA-002/IP-N000076/2017-2018/10207, resident of MNK Associates, Company Secretaries, G-41, Ground Floor, West Patel Nagar, New Delhi-110008 with email-id [email protected], is appointed as an Interim Resolution Professional. 33. In pursuance of Section 13 (2) of the Code, we direct that public announcement shall be made by the Interim Resolution Professional immediately (3 days as prescribed by the IBBI Regulations) with regard to admission of this application under Section 9 of the Insolvency & Bankruptcy Code, 2016. 34. We also declare moratorium in terms of Section 14 of the Code. The necessary consequences of i....