AI Drafter 
TaxTMI 
TaxTMI 
2022 (2) TMI 740
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....ditor/Petitioner has averred as follows:- a. The present petition is filed by the Operational Creditor for an operational debt of Rs. 6,66,667/- (Rupees Six Lakh Sixty-Six Thousand Six Hundred Sixty-Seven Only) which is due and payable by the Corporate Debtor along with an agreed interest at 24% per annum w.e.f. 19.10.2016 till realisation. The Operational Creditor and the Corporate Debtor were in regular business transactions as the operational creditor had rendered management/logistics services such as ocean freight charges, B/L charges, IHC/THC charges etc. to the Corporate Debtor for which various invoices were raised from time to time as per the terms and conditions contained in the said invoices by the Operational Creditor. b. It is submitted that over a period of time, the parties had been maintaining a running account. The Corporate Debtor has made some part payments against the said invoices which were adjusted by the Operational Creditor as "First in First Out method" and an outstanding amount of Rs. 6,66,667/- (Rupees Six Lakh Sixty-Six Thousand Six Hundred and Sixty-Seven Only) became due and payable by the Corporate Debtor along with an agreed interes....
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....'s statement of account as evident from TDS certificate(s) thereby showing excess inflated debit balance in applicant's books of account. vi. Closing balance of F.Y. 2014-15 and opening balance for F.Y. 2015-16 is not same as per applicant's account statement supplied to respondent, furthermore, as per the ledger's accounts of the respondent, nothing is due and payable to the applicant as evident from the ledger of the applicant in respondent's books of account for F.Y. 2014-15, 2015-16 and 2016-17. It is further argued that the corporate debtor's financial condition is sound and running into profit and it is operational creditor against which proceeding under IBC is pending, hence, prayed that the petition may be dismissed in view of the circumstances discussed above. 4. The Operational Creditor also filed the rejoinder and denied all the contentions and averments raised by the corporate debtor and further submitted that the alleged dispute was raised only after receipt of section 8 notice. This Adjudicating Authority vide order dated 15.07.2021 directed the Operational Creditor to file supplementary Affidavit within 4 weeks. The Operat....
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....orporate debtor on 19.10.2016 and relied on Hon'ble Apex Court judgment in Dena Bank (now Bank of Baroda) versus C. Shivakumar Reddy and Anr. in Civil Appeal No. 1650 of 2020. It was held by Hon'ble Supreme Court that in view of the admission on the part of corporate debtor, the application shall not be barred by limitation. It is also stated that corporate debtor has tried to mislead this adjudicating authority by making false averments. It is further stated that the Corporate debtor has also admitted the operational debt amount of Rs. 6,66,667/- as evident from ledger account. At the end it is submitted that there is no pre-existing dispute within the ambit of section 5(6) of IBC, 2016, hence, prayed that this is the fit case for admission. 6. The Corporate Debtor also filed its Written Submission reiterated all the contentions already raised in the reply and submitted that the petition is barred by the limitation and relied on Hon'ble Supreme Court in the matter of B.K. Education Services Private Limited v. Parag Gupta and Associates [Civil Appeal No. 23988 of 2017]. It was held that the limitation being procedural in nature will apply retrospectively but will not....
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....ertain issues which are at best related to reconciliation of certain payments. 9. In view of the above discussion, we are convinced that Operational Creditor has made out case against Corporate Debtor for initiation of CIRP under the Code due to non-payment of Operational Debt of Rs. 6,66,667.40. The present application has been filed on 14.8.2019 with the last payment admittedly having been made by Corporate Debtor on 19.10.2016 on running account basis, the same is held to be within limitation u/s. 137 of the Limitation Act. Therefore, this Authority admits the present Application under section 9 (5) of the I & B Code, 2016. 10. Since the operational creditor has not proposed the name of the IRP, the Tribunal hereby appoints Ms. Gunjan Mittal, with registration number IBBI/IPA-003/IP-N00361/2021-2022/13756, email: ([email protected]) who is and hereby appointed as the Interim Resolution Professional subject to the condition that no disciplinary proceedings are pending against such an IRP named who may act as an IRP in relation to the CIRP of the Corporate debtor and specific consent should be filed in Form 2 of Insolvency and Bankruptcy Board of India (Application t....