TaxTMI 
TaxTMI 
2022 (7) TMI 236
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....ts out the details of the Operational Creditor from which, it is evident that the Operational Creditor is a Private Limited Company. As per Part II of the application, the Corporate Debtor is a Private Limited Company with Corporate Identification No. U74120TZ2015PTC021733 and the registered office of the Corporate Debtor as per the Application is stated to be at S1, Manchester Square, Second Floor, No. 12/1, Puliakulam Road, Opp Kidney Centre, Coimbatore, Tamil Nadu-641 037. 3. As per Part III of the application, the Operational Creditor has not proposed the name of the Interim Resolution Professional (IRP) and left it to the discretion of this Tribunal to appoint the IRP. 4. Part IV of the application signifies the amount of debt to the tune of Rs. 1,67,33,866/- (Rupees One Crore Sixty-Seven Thousand Eight Hundred and Sixty-Six Only) as the outstanding dues that are payable by the Corporate Debtor and the last date of default is mentioned as 31.02.2019. Part V of the application describes the particulars of Operational Debt, documents, records and evidence of default as follows: i. Purchase Order No. 190216/0017 dated 16.02.2019. ii. Certificate from Bank confirming the unp....
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....king payment for invoice Nos. 0401 payment due extends up to May 2020. Similarly, for the invoice Nos. 0441 and 0460 the due dates were extended up to June 2020 and July 2020 those defaults were happened during the COVID-19 period and the application is hit by Section 10A of IBC, 2016. 13. It was further submitted that the remaining default amount is below the threshold amount prescribed in Section 4 of IBC, 2016. Moreover, pointed out that there is a pre-existing dispute between the parties, regarding which a complaint letter dated 13.02.2020 was sent to the applicant. In view of the above submissions, the Corporate Debtor sought dismissal of this application. 14. We have heard learned counsel for both sides. On a perusal of the documents placed on record, it is seen that in Terms and Condition No. 4 of the purchase order No. PO-190216-0017 dated 16.02.2019, it was mentioned as follows "Payment Terms - 40% Advance, Balance 10% at the end of 30th day, 10% at the end of 60th day, 40% at the end of 90th day." Further, in payment and terms of the invoice Nos. 0401, 0441 and 0460, issued by the Operational Creditor it was mentioned as follows "40% Adv 10% at 30th day 10% at 60th ....
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....Creditor, the Corporate Debtor conversed as follows "During our last meeting in November, we had given a payment schedule, which we have honoured our best. We would like to give a schedule including the shortfall and the balance outstanding as follows:- 26.02.2020 1,00,000/- 27.02.2020 1,00,000/- Total 1,38,00,000/- We have prepared the above schedule after taking into all factors so that it does not miss and is honoured as per our commitment. We request you to consider the above schedule and support us by releasing the software accordingly." Reading the above communication makes clear that the Corporate Debtor has admitted it is liable to pay around Rs. 1,38,00,000/- to the Operational Creditor and there is no word expressed about the existence of a dispute with the Corporate Debtor. It is relevant here to refer to the observation of Hon'ble Apex Court in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited, wherein it was held as follows "Therefore, all that the 86 adju....
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....ainst the respondent including the 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 respondent 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 respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. Explanation.-For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a licence, permit, registration, quota, concession, clearance or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that....