ENP Impex Pvt. Ltd. vs Quantum Coal Energy Private Limited

Ch. Mohd. Sharief Tariq, J

Under Adjudication is IBA/308/IB/2019 that has been filed by the Operational Creditor under Section 9 of the Insolvency & Bankruptcy Code 2016 (in short, 'I&B Code, 2016') r/w Rule 6 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The prayer made is to admit the Application, to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, declare moratorium and appoint Interim Resolution Professional (IRP) under the Insolvency and Bankruptcy Code, 2016 (I&B Code).

This Authority has made efforts to bring the parties near to the settlement point, but it could not get success. Therefore, Counsels for both the sides have made their final submission.

Heard the Counsels for the Operational Creditor, Corporate Debtor and perused documents placed on file.

The Operational Creditor has claimed an amount of Rs. 1,74,00,000/- including interest calculated at the rate of 15%p.a. as on 30.11.2018.

The brief facts of the case are that the Operational Creditor had supplied Steaming (Non-Coking) Coal pursuant to the Agreement dated 12.12.2014 for a total 30,000 MT (Metric Tones) vide HSS Invoice No. MV ATHOS/02 dated 12.12.2014 for Rs. 9,56,57,100/.

In support of the claim, the Operational Creditor has placed on record the Bill of Entry, Statement of Workings, Ledger Statement at pages 27 to 29 of the typed set filed with Application, specifying the bill amount, payment received on various dates and interest due on balance.

The Operational Creditor has also placed on record the Bill of Lading Series from pages 20 to 26 and some of e-mail communications exchanged between the Operational Creditor and Corporate Debtor at pages 30 and 32 of the typed set filed with the Application.

Besides above, the Operational Creditor has referred to the Cheque dated 15.03.215 issued by the Corporate Debtor in favour of the Operational Creditor for an amount of Rs. 9,56,57,100/- which was returned for stop payment instructions by the Corporate Debtor vide Cheque Return Advice dated 02.06.2015.

The Operational Creditor had issued a Demand Notice dated 14.01.2019 under Section 8 of the I&B Code, 2016 to the Corporate Debtor, wherein the particulars of the operational debt due are mentioned, which has been delivered on 17.01.2019. Copy of notice and Track Delivery Report are placed pages 7 to 10 and 11 respectively of the typed set filed with the Application, to which a reply was given on 24.01.2019 wherein the Corporate Debtor agreed to make payment of the principal amount of Rs. 55 Lakhs on or before 31.03.2019, but refused to pay interest.

The Operational Creditor has complied with Section 9(3)(b) & (c) of the I&B Code, 2016, by filing Affidavits. Copies of the Affidavits are placed at pages 55 to 58 of the typed set filed with the Application.

The reply has not been filed by the Corporate Debtor. However, the Counsel for the Corporate Debtor has fairly admitted the outstanding principal amount of Rs. 55 Lakhs, but disputed in respect of the interest amount claimed by the Operational Creditor. Further, the Counsel for the Corporate Debtor has brought two Demand Drafts for a total sum of Rs. 5 Lakhs and has offered to pay the balance amount in instalments till 17.04.2020, which was not acceptable to the Operational Creditor. It appears from the facts and circumstances of the case that the Corporate Debtor has become insolvent.

The Operational Creditor has fulfilled all the requirements of law for admission of the Application. This Authority is satisfied that the Corporate Debtor has committed default in making payment of the outstanding debt claimed by the Operational Creditor. Therefore, Application is admitted and the commencement of the Corporate Insolvency Resolution Process is ordered, which ordinarily shall get completed within 180 days, reckoning from the day this order is passed.

The moratorium is declared which shall have effect from the date of this Order till the completion of Corporate Insolvency Resolution Process, for the purposes referred to in Section 14 of the I&B Code, 2016. It is ordered to prohibit all of the following, namely :-

(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 assets or any legal right or beneficial interest therein;

(c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002);

(d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.

The supply of essential goods or services of the Corporate Debtor shall not be terminated or suspended or interrupted during moratorium period. The provisions of Sub-section (1) of Section 14 shall not apply to such transactions, as notified by the Central Government.

The Operational Creditor has not proposed the name of IRP, therefore, Mr. Gopalsamy Ganesh Babu is appointed as IRP, whose name has been in the Panel of Insolvency Professionals recommended by the IBBI, there is no disciplinary proceedings pending against the IRP. The IRP is directed to take charge of the Respondent Corporate Debtor's management immediately. He is also directed to cause public announcement as prescribed under Section 15 of the I&B Code, 2016 within three days from the date the copy of this order is received, and call for submissions of claim in the manner as prescribed.

The IRP shall comply with the provisions of Sections 13(2), 15, 17 & 18 of the I&B Code. The directors of the Corporate Debtor, its promoters or any person associated with the Management of the Corporate Debtor are/is directed to extend all assistance and cooperation to the IRP as stipulated under Section 19, so that he could discharge his functions under Section 20 of the I&B Code, 2016.

The Operational Creditor and the Registry are directed to send the copy of this Order to IRP, so that he could take charge of the Corporate Debtor's assets etc., and make compliance with this Order as per the provisions of I&B Code, 2016.

The Registry is directed to communicate this Order to the Operational Creditor, the Corporate Debtor and the concerned RoC. The address details of the IRP are as follows:-

Mr. Gopalsamy Ganesh Babu,

Reg. No: IBBI/IPA-002/IP-N00246/2017-18/10731,

Email ID: babu@onestepsolution net

Mobile No. 9940550258

Order is dictated and pronounced in open Court in the presence of the Counsels for Operational Creditor and Corporate Debtor.