TaxTMI 
TaxTMI 
2022 (1) TMI 1179
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....or conduction of ATCC traffic surveys on 2 lane and 4 lane sites in the States of Gujarat and Maharashtra. 3. Facts of application filed by Operational Creditor in short are that: * under various purchases orders, the Corporate Debtor placed orders for conduction of ATCC traffic surveys on 2 lane and 4 lane sites in the States of Gujarat and Maharashtra and raised invoices for the same. As per the Clause 1 of the Payment terms under the purchase orders, the amount was payable within 60 days from the date of submission of invoices. Operational Creditor has sent all the invoices along with the cover emails as proof of submission of invoices. * Outstanding amount under the relevant invoices that are due for payment annexed as Annexure F. Contents of Annexure F are reproduced below: * That being aggrieved by the non-payment of invoices, Operational creditor issued a demand notice dated 25.11.2019 of INR 3, 97,17,481/- under the provisions of the Insolvency and Bankruptcy Code, 2016. That the corporate debtor has sent reply to Demand Notice via letter dated 28.12.2019 which was received by Operational creditor on 01.01.2020. Further, Operational Creditor ha....
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....mission of the reports since beginning due to which its future business with IHMCL is getting effected. * The fact of legal notice being served by the operational creditor on the corporate debtor on an earlier occasion is also highlighted by the corporate debtor. The major contention with respect to legal notice is that the different amounts have been asked in legal notice and in demand notice. 5. In response to the reply submitted by Corporate Debtor, Operational Creditor further submitted that in every case of rejection of survey report, Operational creditor is entitled for re-submission of the reports. It is alleged by the Operational creditor that Corporate Debtor has only annexed only those mail conversations which corporate debtor has sent regarding certain reports but Operational Creditor immediately re submitted the survey reports to the Corporate Debtor and those resubmitted survey reports have been duly accepted by Corporate Debtor. 6. On the contention of the rejection of Reports, in response to the Demand Notice's reply received from Corporate Debtor, Operational Creditor submitted that there have been only 3 sites and as per Clause 5 r/w. Clause 7 of....
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.... parties, we are of the considered opinion that: * As per Section 8(2) of the IBC, 2016, the Corporate Debtor had to bring the existence of any dispute if any or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice of the Operational Creditor within 10 days of receipt of such notice i.e. 25.11.2019. But the Corporate Debtor sent the reply to the demand notice to the Operational Creditor on 28.12.2019, which is beyond the stipulated time period. Therefore, the said letter would not be considered as notice sent by the Corporate Debtor to the Operational Creditor showing the existence of any dispute or record of the pendency of the suit of arbitration proceedings filed before the receipt of such notice as per the IBC, 2016. * As far as plea of pre-existing dispute is concerned, Corporate Debtor has failed to satisfy us that there is a pre-existing dispute. The mails which the corporate debtor is annexing is with respect to the rejection of the reports, which operational Creditor has resubmitted but Corporate debtor has concealed the fact of resubmission. As per the clauses mentioned in the Purchase order, for every fai....
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....t 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 payment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the i....
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....s the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be." 11. The Operational Creditor has not proposed the name of any IRP. Accordingly, we appoint, Mr. Satya Prakash an Insolvency Professional, Registration No. IBBI/IPA-002/IP-P00906/2019-20/12920 Email id:[email protected] duly empanelled with the IBBI as the IRP. He is directed to take such steps as are mandated under the Code, more specifically under Sections 15, 17, 18, 20 and 21 and shall file his report before the Adjudicating Authority. 12. The Operational Creditor is directed to deposit a sum of Rs. 01(One) lakh to meet the immediate expenses of IRP. The same shall be fully accountable by the IRP and shall be reimbursed by the CoC, to the Operational Creditor to be recovered as CIRP costs. 13. Copies of the order be sent to both the parties as well as to the IRP. 14. The office is directed to send a free copy of this order to both the parties. ============= Document 1 LIST OF PENDING INVOICES RAISED BY DATACORP ....