2022 (7) TMI 145

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....inafter referred as the Corporate Debtor). 2. It is submitted in the petition that the Corporate Debtor placed Purchase Order No. 151640182 dated 22.04.2016 (Page-24-32) whereby the Operational Creditor was required to supply hose assemblies including rubber hoses, rubber compounds etc. to the Corporate Debtor. Pursuant to the Work Order, the Operational Creditor supplied the same to the Corporate Debtor as mentioned in the Work Order against which the Operational Creditor raised 4 (Four) invoices dated 07.07.2016 (Page-17-23) totalling to an amount of Rs. 35,74,679/-. The total amount of Rs. 35,74,679/-. remains due and payable since 06/09/2016. It is further submitted that the Corporate Debtor acknowledged that the goods are delivered to them and are exported (Page-33- 34 and 41) 3. The parties have exchanged correspondence since and the Corporate Debtor vide electronic mails dated 2nd November, 2016 (Page-38) and 24th November, 2016 (Page-37) has admitted/acknowledged its liability. 4. The Operational Creditor has referred to the minute of the meeting dated 16th November, 2016 held between the Operational Creditor and Corporate Debtor whereby the Corporate Debtor has acknowle....

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....uit is filed, there is no question of making payment to the Applicant 11. In the Rejoinder to the reply filed by the Corporate Debtor, the Operational Creditor has denied the contentions of the Corporate Debtor that there was any defect in the petition or that there is no default. It is denied that the Operational Creditor has failed to show existence of debt or occurrence of default on the part of the Corporate Debtor. It is denied that the there is no operational debt due to the Operational Creditor or there has been any suppression of material facts. 12. It is submitted that the invoices raised by the Operational Creditor on the Corporate Debtor fell due on 06.09.2016. The present petition was filed by the Operational Creditor on 03.09.2019 which was within the period of limitation of three years from when the amount first fell due as per Article 137 of the Limitation Act, 1963 (Page 4, Para 9 of the Rejoinder). It is further submitted that an affidavit in compliance with Section 9(3) (b) of IBC, has been filed with the application as Annexure IV (2). Further, from Macquarie Bank Vs. Shilpi Cable Technologies [(2018) 2 SCC 674], a certificate from a financial institution is no....

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....td. v. Kirusa Sortware Private Ltd. [(2018) 1 SCC 353], that the notice of dispute must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. It is submitted that the Corporate Debtor has never denied the amount owed by it to the Operational Creditor and has not raised any dispute with regards to the quality of the goods supplied by the Operational Creditor. The amounts sought as due from the Corporate Debtor have also not been disputed. 17. Learned Counsel for the parties were heard and both of them have taken us through the pleading and documents refer. During the course of arguments, Ld. Counsel for the Operational Creditor handed over a copy of the Order dated 5th May, 2022 passed by the Hon'ble Calcutta High Court in C.S. No. 2 of 2017. On perusal of Order of the Hon'ble High Court it is clear that the Corporate Debtor had filed an application for an order of unconditional and voluntary withdrawal of the suit and all interlocutory applications in the suit being CS/2/2017. On such application the Hon'ble Judge was pleased to pass an order allowing with....

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....R i. The application filed by the Operational Creditor under Section 9 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, is hereby admitted. ii. We hereby declare a moratorium and public announcement in accordance with Sections 13 and 15 of the I & B Code, 2016. iii. Moratorium is declared for the purposes referred to in Section 14 of the Insolvency & Bankruptcy Code, 2016. The I.R.P. shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency & Bankruptcy Code, 2016 shall be made immediately. iv. Moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following: 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 a....