Adecco India Private Limited vs Bses Rajdhani Power Limited

Hemant Kumar Sarangi, Member (T)

The present application is filed under Section 9 of Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC, 2016') read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') by M/s. Adecco India Pvt. Ltd. (for brevity 'Applicant5), through its authorized representative Mr. Subir Kumar, authorizing him to file present application vide Board resolution dated 11.12.2018, with a prayer to initiate the Corporate Insolvency Resolution process against M/s. BSES Rajdhani Power Limited (for brevity 'Respondent').

The Applicant, the Operational Creditor namely, M/s. Adecco India Private Limited, is a company incorporated on 24.11.1999, under the provisions of Companies Act, 1956 with CIN No. U72900KA1999PTC051999, having its registered office at Sai Deep Sri Nidhi No. 2, NAL Wind Tunnel Road, Murgesh Palya, Bangalore, Karnataka-560017.

The Respondent, the Corporate Debtor namely M/s. BSES Rajdhani Power Limited is a company incorporated on 04.07.2001, under the provisions of Companies Act, 1956 with CIN No. U40109DL2001PLC111527, having its registered office at BSES Bhawan, Nehru Place, New Delhi- 110019.

The Authorised Share Capital of the respondent company is Rs. 12,00,00,00,000/- and Paid Up Share Capital of the company is Rs. 10,40,00,00,000/-as per Master Data of the company.

It is the case of the applicant that, the Corporate Debtor approached the Operational Creditor, to engage its services on a non-exclusive basis in order to avail services, skills, and expertise of the resources of the Operational Creditor for the purposes of the operations of the Corporate Debtor and to that effect an agreement dated 04.07.2017 (hereinafter referred to as the 'Principal Agreement'), was executed, effective from 01.07.2017 to 30.06.2018, whereby it was agreed upon that the Operational Creditor would provide the Corporate Debtor, in lieu whereof, the consideration, being the fees, for the aforementioned services, shall have to be disbursed by the Corporate Debtor as per the arrangement recorded under 'Annexure I' to the Principal Agreement dated 04.07.2017.

It has been stated by the Operational Creditor that, as per the Principal Agreement the Corporate Debtor was availing the services of the Operational Creditor, whereby, the Corporate Debtor was being provided with resource personnel for its staffing requirements. Crucially, however, resource personnel as provided to the Corporate Debtor by the Operational Creditor were not the employees of the Corporate Debtor as the remuneration and other statutory payments were throughout made to the resource personnel by the Operational Creditor. It is relevant to note that, the clause 5.2 of the Principal Agreement was amended vide Amendment to the Principal Agreement dated 05.09.2017, executed between Operational Creditor and Corporate Debtor, whereupon the clause 5.2 read as:

"Adecco India shall raise provisional invoice for 60% of the estimated value (excluding service charge) for the current month's salary outgo and submit the same latest by 25th of the current month. The payment for the same shall be released by the client on or before the last date of the month.

Adecco India shall submit final invoice for the month latest by 20th of the following month. The client shall release the balance amount on or before the end of the following month after adjusting the 60% advance given in the previous month upon submission of proofs of salary disbursed to the resources and statutory payments. Client will make payment to Adecco India by crossed account payee cheques/RTGS/ECS. Adecco India will disburse the wages/ salary to its resources by 7th of the following month through cheques/RTGS/ECS and will provide pay slip to all. Adecco India shall promptly (as per statutory requirement), make payment to Regional Provident Fund Organisation & Employee State Insurance Corporation, the amount deducted from wages/salary of its resources along with company's contributions through separate challan as per statute under intimation to the Client and provide a copy of the same to the client. " Vide the Amendment dated 05.09.2017.

The Operational Creditor further states that, as is ascertainable from the above presented clauses, the Operational Creditor was to raise invoices for a particular month in two parts; once, during the course of the particular month for 60% of the total invoice amount, and secondly, during the course of the following month for the balance amount. The Corporate Debtor was obliged to make payment of the first invoice for 60% of the total invoice amount for the particular month during the course of the said particular month; and the Corporate Debtor was obliged to make payment of the balance amount during the course of the ensuing month.

In view of the above, the bills and invoices dated 31.03.2018, 27.04.2018, 29.06.2018, 31.07.2018 and 17.09.2018 were raised upon the Corporate Debtor by the Operational Creditor. That vide email dated 24.09.2018, the Corporate Debtor was reminded by the Operational Creditor of the due payments and was requested to disburse an amount of Rs. 3,54,08,330.78/- (Rupees Three Crore Fifty Four Lakhs Eight Thousand Three Hundred Thirty Three and Seventy Eight Paise), as was due on the said date.

The Operational Creditor further states that, vide email dated 25.10.2018, the Corporate Debtor was again called upon to make payment of the due amount, in reply whereof, vide email dated 25.10.2018, the Corporate Debtor gave a false assurance of putting in best efforts with regard to the said pending payment of dues to the Operational Creditor; which denotes that the Operational debts accrued against the Corporate Debtor are undisputed by the Corporate Debtor.

The Applicant also states that, vide email dated 29.10.2018, it was again conveyed by the Operational Creditor to the Corporate Debtor that the invoices had remained unpaid and despite assurances received from the Corporate Debtor, the same had remained outstanding. That vide email dated 29.10.2018 addressed to the Corporate Debtor was again called upon to intimate the Operational Creditor as to by when the Operational Creditor could expect the payment of the dues from the Corporate Debtor.

The Applicant states that, after various reminders in relation to the unpaid invoices, the Corporate Debtor, on 17.11.2018 made a part payment of Rs. 1,00,00,000/- (Rupees One Crore), in respect of the net outstanding invoices raised by the Operational Creditor; which effectively confirms the undisputed nature of the Operational Debt owed by the Corporate Debtor to the Operational Creditor. However, the same was not a full and final payment of all the payment obligations of the Corporate Debtor and huge sums of money as detailed herein below which still remained due and payable by the Corporate Debtor.

On failure to pay the outstanding dues by the Respondent, the applicant sent a demand notice dated 11.12.2018 under Section 8 of the Insolvency and Bankruptcy Code, 2016 to the respondent asking them to make the balance outstanding payment of Rs. 2,68,06,255/- (Rupees Two Crore Sixty Eight Lakhs Six Thousand Two Hundred Fifty Five), along with pendente lite interest @ 18% per annum, within 10 days from receipt of the notice, failing which the applicant shall initiate the Corporate Insolvency Resolution process against the Respondent.

The applicant has filed affidavit of service and stated that the Corporate Debtor has been served through Registered Post, Speed Post and Dasti, in compliance with the order dated 22.01.2019, issued by this Bench. The applicant has also filed proof of service through dasti in compliance of the order dated 22.01.2019, on the address available as per MCA master data of the company.

Despite the demand notice sent under Section 8 of the Code, the Respondent has failed to pay the amount demanded and has neither raised any notice of dispute nor replied to the said notice, hence this application, seeking to unfold the process of CIRP.

The applicant has stated that total debt due and payable is Rs. 2,68,06,255/- (Rupees Two Crores Sixty Eight Lakhs Six Thousand Two Hundred Fifty Five), along with pendente lite and future interest @ 18% per annum.

The application under section 9 of the IBC, 2016 was filed by the applicant to initiate CIRP. The Respondent caused appearance and seek time for filing of reply vide order dated 22.01.2019, the Respondent was given time to file reply. The reply was filed and has been considered for adjudication in the present proceedings.

The Respondent in its reply states that, On 09.05.2019, i.e. during the pendency of the present Petition, since Adecco has cleared the pending obligations towards most of the employees BRPL, in a bonafide manner, after verifying the accounts made a payment of Rs. 2,40,86,267/- in favor of Adecco. As such, at present dispute now only pertains to an amount of Rs. 27,19,988/- which includes:

(a) TDS: Rs. 10,32,093/- is towards TDS claimed for the FY 2012-2013.

(b) Bonus: Remaining Amount relates to double payments for bonus/ex-gratia made by Adecco for the FY 2017-18.

The Corporate Debtor states that, on 04.07.2017, BRPL entered into Service Providers Agreement ('SPA') with Adecco in order to avail the services, skill & expertise of the skilled labour/ manpower ("Contractual Employees"), for its day to day functioning and its business requirements. Thereafter, on 05.09.2017, the SPA was amended. The obligation to comply with labour laws and to ensure timely payment of statutory dues and other obligations was entirely and exclusively the case on Adecco under Clause 4.411, Clause 5.312 and Clause 2013 of General Conditions of the SPA.

The SPA was due to expire on 30.06.2018 and in order to ensure that no loss of employment is caused to the Contractual Employees, BRPL agreed to transfer the personnel currently in employment of Adecco assigned to its institutions to the new service provider. As a part of the process of such transfer, in accordance with the clauses of the SPA, Adecco was obliged to ensure that the accumulated Employees Provident Fund (EPF) with its Trust is handed over to the new Service Provider and the relevant documents qua RPFC, EPF and EPS facilities are provided.

On 02.05.2018, BRPL sought an update on the issue and advised Adecco to take appropriate actions failing which BRPL would have to take necessary actions against Adecco. It is evident that Adecco defaulted in its obligations under the SPA and there was a dispute between the parties.

On 11.05.2018, BRPL informed that 20% of the service charges shall be retained, due to the lapses and failure to meet the contractual obligations on part of Adecco.

BRPL received many complaints in this regard from the contractual employees engaged through Adecco. Accordingly, BRPL, as a principal employer was compelled to withhold amounts to protect the interests of the such contractual employees. This was done after due intimation to Adecco. The same is evident from the internal email dated 30.08.2018 of Adecco wherein Adecco acknowledges that BRPL had held the amount and they need to clear all pending PF cases.

On 04.09.2018 at 8:25 pm, Adecco by an email acknowledged at Point 7 that "7. BRPL to help in resolving the difference of TDS by providing details of 2012-13 and amount of TDS related to 12-13 deposited in 13-14 to close the DN raised and reconcile" BRPL responded to the said email on 05.09.2018 and reminded Adecco of its commitment to settle all balance EPS/EPF cases latest by 20.09.2018.

In order to protect the interests of the Contractual Employees, BRPL has no other alternative but to withhold payment of Invoices in order to ensure that Adecco performs its contractual obligations in respect of the Contractual Employees. It was made clear that till the grievances of the Contractual Employees are not addressed, BRPL shall not make any further payments.

As is evident from the exchange of emails referred above, BRPL had raised a dispute with respect to the amounts claimed in the Petition prior to the issuance of Demand Notice dated 11.12.2019 by Adecco. The dispute raised satisfies the test that has been laid down in the judgment of the Hon'ble Supreme Court in Mobilox Innovations Private Ltd vs. Kirusa Software Private Ltd (2018) 1 SCC 353. Accordingly, the present Petition is liable to be dismissed as there is a pre-existing dispute between the parties in the present case.

During the pendency of the Petition, the Respondent had made certain payments with respect to the Invoices mentioned in the present Petition, as explained in Para 2 herein above. The dispute with regard to the pending claims is detailed herein under:

A. TDS - Alleged claim pertains to TDS for the Financial Year 2012-13. It is submitted that:

(a) BRPL has been making regular payments to Adecco for bills raised. Further BRPL has deducted TDS from the bills and the same has been deposited with the relevant authorities. However, in a clandestine manner, Adecco raised an Invoice dated 30.03.2018 for certain alleged unpaid amounts of TDS for FY 2012-13 i.e. after a delay of 5 years.

(b) There is no 'default' on account of BRPL and BRPL has duly deposited the amount of TDS with the authorities. In support of the same BRPL has also provided the TDS certificates for the relevant FY.

(c) The Invoice dated 30.03.2018 was duly disputed by BRPL before the issuance of the Demand Notice and Adecco by email dated 04.09.2018, has agreed that the said amount has to be reconciled by providing the details for the TDS deposited for the relevant years.

(d) BRPL has time and again provided all relevant details to Adecco for the same and it is for Adecco to verify for which Invoices the TDS deposited has not been accounted for by Adecco in their books of accounts. There is no outstanding TDS to be deposited by BRPL and Adecco has to reconcile its financials.

(e) During the pendency of the proceedings the parties have been able to reconcile an amount of Rs. 6 lacs of the said TDS amount and the remaining amount of Rs. 4 lacs is pending reconciliation for which BRPL has provided all relevant details.

(f) Adecco has annexed a calculations sheet in the Application for Additional Documents to show outstanding TDS, however the same lacks credibility as:

The sheet is a one-sided document maintained by Adecco and has no legal sanctity.

The last entry at pg. 13 of the Application and the first entry at pg. 14 of the Application are in the name of BSES Yamuna and not BRPL. Adecco has failed to provide the relevant invoice wise details for the FY 12-13 showing that the TDS booked by Adecco was as per law and not paid by BRPL.

BRPL has filed its detailed calculations sheet showing the payment for the TDS amount. In any case, in view of the dispute raised, as mentioned above and this claim being barred by limitation, this claim cannot form the basis for initiation of CIRP against BRPL.

B. Bonus - Alleged claim pertains to a double payment made by Adecco unilaterally in addition to the Bonus/ex-gratia already paid for 2017-18 The same was done without informing or consulting BRPL. It is submitted that:

(a) Adecco being the employer for the contractual employees, is responsible to identify the employees and calculate and pay the Bonus. During the normal course, Adecco prepared a calculation sheet identifying the amount of Bonus to be paid to employees eligible for Bonus; and Ex-Gratia amount to be paid to the employees who are not eligible for Bonus.

(b) Admittedly, Adecco carried out the said exercise for the FY 2017-2018 and raised an invoice bearing No. DLBON100161819 (not part of the present Petition) for the same on BRPL. The payments were released after sharing the required information with BRPL and after taking confirmation to release the amounts.

(c) On 29.10.2018, BRPL made a payment of Rs. 1,40,09,857.98/- on account of the Bonus paid by Adecco. The payments for the Bonus for FY 2017-2018 and the Invoice raised have been made by BRPL and there is no dispute on the same by Adecco.

(d) However, it has been stated by Adecco that it realized that certain contractual employees who had been paid Ex-gratia were eligible to be paid Bonus. After realizing the same, Adecco unilaterally made double payments to the employees for an amount of Rs. 18,07,625/-.

(e) An Invoice dated 28.11.2018, for the double payment of Bonus, was raised for the first time by speed post on 31.12.2018, however, the same was never delivered to BRPL and was returned Notice, Petition of Rejoinder and was filed at a belated stage with the Application for Additional documents sometime in July 2019.

(g) It is noteworthy that:

(i) In a clandestine manner, Adecco filed an Application for Additional documents bearing CA No. 223 of 2019 placing on record documents and pleadings for the TDS amount and the Bonus amounts.

(ii) The same cannot be taken into consideration as there is no enabling provision under the Code or the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 enabling Petitioner to file additional documents after the completion of the pleadings.

(iii) It stands to reason that a Petition under the Code has to be adjudicated on the basis of the facts in the Petition and Demand Notice and the documents annexed thereto provided along with Petition and Demand Notice. Respondent has based its defence on the basis of the Documents and averments in the Demand Notice and the Petition. Valuable rights accrued to the Respondent to seek dismissal of Petition on account of deficiency in Demand Notice and Petition. The same cannot be taken away by allowing the said Application.

(iv) A bare perusal of Application, clearly shows that, the additional documents were in the knowledge of Adecco and were available with Adecco prior to filing of the Application. There are no bona fide reasons provided in the Application for not filing the said documents at the relevant time. i.e. at the time of filing Original Petition.

(v) The error in releasing double bonus/Ex-gratia if any was on account of Adecco and BRPL, being a regulated entity, cannot be made liable of faults of Adecco.

(vi) BRPL had duly disputed its liability to pay at the relevant point in time and there is a dispute regarding the amount of Bonus/Ex-gratia be paid. This Hon'ble Tribunal cannot be expected to calculate the correct amount of bonus to be paid for each employee and adjudicate the difference in the payments.

In pursuance to the reply of the Corporate Debtor, the Operational Creditor has filed its rejoinder, the same has been taken on record. The Operational Creditor in its Rejoinder states that, the so called pre-existing dispute as alleged by the Respondent pertains to determination of the Right to Payment of the Applicant in respect of the services as provided by the Applicant to the Respondent, it is essential to present understanding of the arrangement as entered into between the Respondent and the Applicant.

It is stated that the Applicant is an exempt entity under the Employee's Provident Fund and Miscellaneous Provisions Act, 1952 and by virtue thereof, an independent Trust by the name and title : Adecco Employees Provident Fund Trust" (hereinafter referred to as the 'Trust') was established for the benefit of the employees of the Applicant in connection with the Provident Funds and for processing the claim applications of the employees of the Applicant for withdrawal of the Provident Fund amount. The trust is an independent body established and regulated by the Employees Provident Fund Organisation (hereinafter referred to as the 'EPFO') and is governed by the board of Trustees. All employees of the Applicant along with the resources as deployed by the Applicant to serve the Respondent under the SPA are members to the trust. The trust by virtue of being regulated by the Employees Provident Fund Organisation is answerable to its members and to the EPFO only. In view of the above it is demonstrated that the Respondent has no role to mediate on behalf of the members of the Trust particularly with regard to the transfer.

Further going by the SPA, at no point in time under no circumstances whatsoever has the Respondent herein, being the client, ever raised any dispute with respect to any deficiency in the discharge of services as specified under the scope of services of the SPA, neither prior to and nor post the issuance of the Demand Notice dated 11.12.2018 by the Applicant to the Respondent, herein. Further, with respect to the contention of the Respondent as being the 'Principal Employer' of the resources so provided to the Respondent by the Applicant, the attention of this Tribunal is invited to the following clauses of the SPA:

"21. [...] Resources shall be on regular rolls of Adecco India. Resource shall also be rotated by Adecco India preferably every quarter on performance basis. The overall performance of Mis Adecco India will be assesses during the tenure of the agreement, as per Assessment parameters for agencies as explained in Annexure-III which is a part of this agreement. On the basis of this assessment. Adecco India will be given reward by enhancing the resources. In the same manner, in case the performance is not satisfactory Adecco India will be penalized by reducing the resource. [...]".

That by virtue of the above presented clause of the SPA and as is discernible through the general scheme of the SPA, it is sufficiently understood and derived that the entire gamut of responsibilities concerning the resources rests solely on the shoulders of the Applicant, including, importantly, towards making the necessary payment of wages/salaries, the statutory payments, and related benefits to the resources.

The Operational Creditor further states that, the Corporate Debtor through its reply has attempted to contend au cotraire by presenting that it is the Respondent that holds the statutory payment and related benefits to the resources and by virtue thereof has attempted to justify the withholding of the payments for the services of the Applicant. The correct position, however, is that it is solely the Applicant that is responsible to discharge its obligations towards the wages/salaries of the resources and towards making the statutory payments and related benefits in favour of the resource, as has been aptly presented above. The contentions raised by the Respondent are not directed towards discharge of obligations by the Applicant towards payment of wages/ salaries of the resource but are relating to the transfer of the Provident Fund and Pension Fund and Pension of the resources which is not within the purview of the SPA but related to the affairs of the EPFO, the trust and its members.

The Operational Creditor also states that, drawing from above clarification that (a) the Respondent has at no point time raised any dispute with respect to the services as extended by the Applicant as specified in the 'Scope of Services' and that (b) the Applicant is the sole employer of the resources, the attention of the Tribunal is invited to paragraph 9(d) (a) Page 6 of the Reply of the Respondent, which is presented herein below:

" d) The ultimate liability for the afore-mentioned was of the Respondent, being the Principal Employer. In order to safeguard the Contractual Employees and the Respondent from any exposure to risk and liability accruing because of any illegal action of the Petitioner, Clause 5.3 of the SPA provided that in case the Respondent receives any complaint regarding non-payment of wages/ salary to Contractual Employees, the amount payable to them will be recovered from the Petitioner's bill."

That the contention of the Respondent of being vested with the ultimate liability towards the resources, it is stated that the Respondent herein is not exposed to any liability towards the same.

The arrangement as established by virtue of the Clause 5.3 seeks to ensure that only if in the case the Respondent is required to make payments to the resources towards their wages/salaries, the same shall be recoverable from the Applicant herein. Further, the misconceived dispute as alleged by the Respondent falsely contends that the Applicant herein has failed to clear the exit formalities and provide the relevant documents qua transfer of RPFC, ECF and EPS facilities to the employees who terminated their employment with the Applicant.

The Applicant in this respect states that, the above mentioned Trust is a body regulated by the Employee's Provident Funds and Miscellaneous Provisions Act, 1952 and as such any dispute of a member regarding any grievance against the processing of the Employee's Provident Fund claims by the Trust are to be raised before the Regional Provident Funds Commissioner, which is the adjudicating authority under section 7(a) of the Act.

The Applicant further states that, the contention as raised by the Respondent in an attempt to raise an unqualified dispute with respect to the invoices as raised by the applicant on the Respondent from time to time is untenable and unmaintainable. With respect to the invoice dated 31.03.2018 as raised by the Applicant on the Respondent for an amount of Rs. 10,32,092.95 it is stated that the Respondent herein has remarked as under:

"(a) After checking the financial documents, it was observed that the amount in the invoices is not payable by the Respondent

(b) A perusal of the invoice shows that the same is for TDS for the period of 2012-13. For the said period the TDS certificates are duly provided. Therefore, there is no amount due for the said invoice. "

In response to the same, it is stated that the said Invoice was raised against the TDS Receivable- Current Year's marked as Annexure A-5 (colly) in the Application and the reason stated for the same reads TDS reversal 2012-13'. Thereby being liable to be paid by the Respondent to the Applicant.

It is further clarified in respect of the same that the TDS accounted against the Respondent for the F.Y. 2012-13 was Rs. 43,33,578/- (Rupees Forty-Three Lakhs Thirty Three Thousand Five Hundred Seventy Eight), whereas upon perusing the financial statements I was derived that the TDS deposited towards the same stood at Rs. 33,01,485/- (Rupees Thirty Three Lakhs One Thousand Four Hundred Eighty Five), thereby being short by an amount of Rs. 10,32,093/- (Rupees Ten Lakhs Thirty Two Thousand Ninety Three), as has been duly raised by the Applicant against the Respondent vide invoice dated 31.03.2018, thereby making the Respondent liable to be paid same to the Applicant.

The Applicant states that, with respect to the invoices dated 27.04.2018, 29.06.2018, 31.07.2018 and 17.09.2018, the Respondent herein has remarked that "The amount was retained due to non-compliance of the SPA." In view of the submissions as made with respect to the alleged existing dispute between the parties as presented above, it is stated that the payments towards the said invoices have been unduly and unlawfully retained by the Respondent, thereby qualifying as an undisputed default on part of the Respondent with respect to the Right of Payment of the Application.

That with respect to the amount of Rs. 18,07,625/- (Rupees Eighteen Lakhs Seven Thousand Six Hundred Twenty Five), the Respondent has contended that no invoice was ever raised towards the said amount and that the same is for Bonus/Ex-gratia payments. The said payments had been made by the Applicant upon having received specific instructions and confirmation from the Respondent herein vide email dated 26.10.2018, wherein the Respondent has specifically admitted to receiving the invoice to that effect as submitted by the Applicant to the Respondent.

It is pertinent to note that the applicant has placed on record all the invoices, stating that the respondent itself had acknowledged the said invoices. Once the debt is shown as due, it is for the respondent to prove that there are no outstanding dues to be paid to the applicant. There has been much cloud in the submission of the respondent. Therefore, without any specific details of material particulars or evidence the fact of existence of a dispute cannot be sustained.

In "Innoventive Industries Ltd. (Supra)", the Hon'ble Supreme Court held that pre-existing dispute is the dispute raised before demand notice or invoices was received by the 'Corporate Debtor'. Any subsequent dispute raised while replying to the demand notice under Section 8(1) cannot be taken into consideration to hold that there is a pre-existing dispute.

In "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited", Hon'ble Supreme Court held:

"40 Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defense which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defense is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application."

In the present case, there is no such dispute as pre-existing, the dispute which was being claimed to be pre-existing by the the corporate debtor did not survive.

The applicant has filed an affidavit under Section 9(3)(b) stating that no notice of dispute from Corporate Debtor is received.

The registered office of respondent is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application.

On perusal of the record it is clear that the last payment was made by the Corporate Debtor on 17.11.2018. Hence, the claim is not time barred. And the present application is well within the limitation period.

In the given facts and circumstances, the present application is complete and the Applicant is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application is admitted.

The Applicant has proposed the name of Interim Resolution Professional, Mr. Manoj Kumar Anand having registration No. IBBI/IPA-001 / IP-P00084/ 2017-18/10180, having email id anandmanoja@gmail.com, as the IRP of the Respondent. The IRP is directed to take all such steps as are required under the statute, more specifically in terms of Sections 15, 17, 18, 20 and 21 of the Code.

As a consequence of the application being admitted in terms of Section 9(5) of IBC, 2016 moratorium as envisaged under the provisions of Section 14(1) shall follow in relation to the Respondent, prohibiting the respondent as per proviso (a) to (d) of section 14(1) of the Code. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(3) of the Code shall come into force.

We direct the Operational Creditor to deposit a sum of Rs. 2 lacs with the Interim Resolution Professional Mr. Manoj Kumar Anand to meet out the expenses to perform the functions assigned to him in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the Operational Creditor. The amount however be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Operational Creditor.

The registry is directed to communicate a copy of the order to the Operational Creditor, the Corporate Debtor, the Interim Resolution Professional and the Registrar of Companies, NCR, New Delhi at the earliest but not later than seven days from today. The Registrar of Companies shall update his website by updating the status of 'Corporate Debtor' and specific mention regarding admission of this petition must be notified.