TaxTMI 
TaxTMI 
2019 (1) TMI 1830
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....d on file. 3. The operational creditor has claimed a total sum of USD 41,321.30 (USD forty one thousand, three hundred and twenty one dollars and thirty cents) including interest which the corporate debtor has failed to pay. 4. The facts of the case are that the operational creditor has supplied fruits as per the demands made by the corporate debtor over a period from February, 2013 to January, 2015. However, one Invoice No. 214256 dated August 4, 2014 has become due on October 7, 2014 and remained unpaid till date. 5. Counsel for the operational creditor has referred to the communication dated September 12, 2014 placed at page 23 of the typed set filed with the application which has been sent by the corporate debtor to the operational creditor wherein the subject Invoice No. 214256 is being referred and on the basis of which the claim has been made. In the said communication it has been assured by the corporate debtor that it shall pay the whole amount within maximum of 15 day's time from the date of the document cleared from the bank. 6. Similarly, counsel for the operational creditor has referred to another communication dated September 9, 2014 placed at page 25 ....
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.... filed any suit or arbitration proceedings concerning its liability to the operational creditor pertaining to the unpaid operational debt. Copy of the affidavit is placed at pages 96 to 111A of the typed set filed with the application. The operational creditor has also placed on record the bank certificate at page 53 and the statement of accounts issued by the US Bank at pages 54 to 95 of the typed set filed with the application. 11. Counsel for the corporate debtor has filed a reply on August 28, 2018 along with typed set of documents wherein two issues have been raised by it ; one is pertaining to the authority given for filing the present application. It is submitted by counsel for the corporate debtor that authorization is not proper. The other issue is about quality of goods supplied by the operational creditor to the corporate debtor. In relation to the first issue, it has specifically been stated that the person who has signed the application is not having any relation with the operational creditor. Therefore, the same is invalid without valid power of attorney executed in favour of the authorized signatory by the operational creditor. On this score, it has been submitted....
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....r the corporate debtor has further pointed out that since the board has authorized the signatory to initiate the insolvency process under sections 8 and 9 of the I and B Code, 2016, the notice under section 8 should have also been issued by the authorized signatory. In this respect, it has to be made clear that form 3 is required to be signed by the director or an officer of the entity, i. e., operational creditor. Counsel for the corporate debtor on the one hand has challenged the board resolution and granting of the authority to the signatory and on the other hand he is banking upon the same board resolution and raising the issue that the notice under section 8 of the I and B Code, 2016 has not been signed by the authorized authority. He is blowing hot and cold in the same breath which is not permissible under law. 15. Counsel for the corporate debtor has further submitted that the corporate debtor has paid almost all the invoices except one and the reason for non-payment thereof is that the quality of the goods sent was not fulfilling the specifications. He has placed on record the photographs of the items supplied. Under paragraph 7 of the reply it is stated that the apples ....
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....tisfied that the corporate debtor has committed default in making payment of the outstanding debt claimed by the operational creditor. Therefore C. P. No. 850/(IB)/CB/2018 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. 20. The moratorium is declared which shall have effect from the date of this order till the completion of the corporate insolvency resolution process, for the purposes referred to in section 14 of the I and B Code, 2016. It is ordered to prohibit all of the following, namely : "(a) 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 ; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein ; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any actio....