TaxTMI 
TaxTMI 
2019 (2) TMI 887
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....director of the operational creditor has been authorized by the board resolution passed in the minutes of the meeting of the board of directors held on April 4, 2018 (page 14) to submit and sign the petition. 3. The "corporate debtor"-M/s. Aura Management Services P. Ltd., was incorporated on December 18, 2006. Its identification number is U74140DL2006PTC156648. Its authorized share capital is Rs. 1,00,000 and paid-up share capital is Rs. 1,00,000. It is based at 8-C, Hansalaya Building, Barakhamba Road, Delhi-110 001. 4. The case of the "operational creditor" is that it entered into a memorandum of understanding in the year 2007 with the corporate debtor for provision of facility management services (house keeping and engineering/ building services). As per the said memorandum of understanding, facilities were supplied to the respondent at their site known as "Sunrise Plaza Mall", Plot No. 12A, Ahinsakhand, Indirapuram, District Ghaziabad, Uttar Pradesh by providing requisite personnel. The facility was provided for 24Ã-7Ã-365 days in a year with weekly off with provision of relievers. As per the term of the memorandum of understanding respondent was to pay an ....
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....resaid award dated December 2, 2012, the operational creditor initiated Execution Proceeding bearing No. 5685 of 2016 before the Additional District Judge-01, Patiala House Courts, New Delhi. 10. The operational creditor sent demand notice on February 21, 2018 to the corporate debtor as per mandatory provisions of section 8 of the Code on its registered office address at 8-C, Hansalaya Building, Barakhamba Road, Delhi-110 001 but the corporate debtor deliberately and purposely did not receive the said notice. 11. The operational creditor has also attached affidavit vide Diary No. 9506 dated November 29, 2018 as per the requirements of section 9(3)(b) of the Code highlighting that it has not received any payment from the corporate debtor towards the operational debt nor received any notice relating to a dispute of the unpaid operational debt. 12. It is claimed that the corporate debtor is liable to pay an amount of Rs. 47,34,736 (rupees forty-seven lakhs thirty-four thousand seven hundred thirty-six only) towards the unpaid operational debt to the operational creditor wherein the principal amount is Rs. 23,55,590 and the interest is Rs. 23,79,146 at 12 per cent. per annum w....
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....ing of section 3(12) read with section 7(5)(a) of the Code. We have already recorded our satisfaction that the default has occurred and the amount has become due and payable. Therefore, the question concerning limitation pale into insignificance and the reliance placed on the judgment of hon'ble the Supreme Court in B. K. Educational Services P. Ltd. v. Parag Gupta and Associates [2019] 212 Comp Cas 1 (SC), Civil Appeal No. 23988 of 2017, decided on October 11, 2018 is wholly misplaced. 15. Another argument raised is that the mandatory provisions of section 9(5)(ii)(c) of the Code have not been complied with inasmuch as the invoice and the notice for payment under section 8 of the Code has not been received. The aforesaid objection would not require any detailed consideration because a perusal of the pleadings shows that the service has been effected on the registered office situated at 8-C, Hansalaya Building, Barakhamba Road, New Delhi. The argument raised is that the aforesaid address has undergone change and the petitioner was fully aware of the change of address which was disclosed in paragraph 8 in reply filed by the corporate debtor before the executing court on Novem....
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.... "5. (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 repayment 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." The "operational creditor" is a person, inter alia, to whom operational debt is owed and includes any person to whom such debt has been assigned or transferred. The definition of the operational creditor is not exhaustive but illustrative. It is capable of covering even those heads which are not specifically mentioned in the definition. The definition of operational debt postulates that it is a claim in respect of the provision of "goods" or "services" including employment, etc. A perusal of the invoices issued by the operational creditor in the name of the corporate debtor unfolds that the operational creditor has rendered the services of supplying personnel to carry out the work of house keeping....
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....ion proceeding is pending then the amount would be considered to be disputed within the meaning of section 9(5)(ii)(d) of the Code. The judgment in K. Kishan v. Vijay Nirman Co. P. Ltd. [2018] 4 Comp Cas-OL 112 (SC) lays down the proposition of law that in respect of an operational debtor where an arbitral award has been passed against the operational debtor then on corporate insolvency resolution process could be initiated if the award has not been finally adjudicated upon. In that case a petition under section 34 of the Arbitration Act was pending and it was concluded by the hon'ble Supreme Court that no corporate insolvency resolution process could be initiated. In paragraph 19 of the judgment it has been clarified that if a petition has been filed under section 34 of the Arbitration Act challenging the arbitral award which is time barred and the period of 90 days plus discretionary period of 30 days has expired then the insolvency process may be put into operation. Paragraph 19 of the judgment is set out below verbatim (page 123) : "We may hasten to add that there may be cases where a section 34 petition challenging an arbitral award may clearly and unequivocally b....
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....rrupted during the moratorium period. These would include supply of water, electricity and similar other supplies of goods or services. 24. The interim resolution professional shall perform all his functions religiously and strictly which are contemplated, inter alia, by sections 15, 17, 18, 19, 20 and 21 of the Code. He must follow best practices and principles of fairness which are to apply at various stages of corporate insolvency resolution process. His conduct should be above board and independent ; and he should work with utmost integrity and honesty. It is further made clear that all the personnel connected with the operational debtor, its promoters or any other person associated with the management of the operational debtor are under legal obligation under section 19 of the Code to extend every assistance and co-operation to the interim resolution professional as may be required by him in managing the affairs of the operational debtor. In case there is any violation by the ex-management or its ex-directors the interim resolution professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The interim re....