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Judgment
Ch. Mohd. Sharief Tariq, J
Under Adjudication is IBA/407/2019 that has been filed by M/s. Fairmacs Shipping & Transport Services Pvt. Ltd. (hereinafter referred to as 'Operational Creditor') under Section 9 of the Insolvency & Bankruptcy Code 2016 (in short, 'I&B Code, 2016') r/w Rule 6 of the Insolvency 8b Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against M/s. Golden Anchor Logistics Pvt. Ltd. (hereinafter referred to as 'Corporate Debtor'). The prayer made is to admit the Application, to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, declare moratorium and appoint Interim Resolution Professional (IRP).
Heard the Counsel for the Operational Creditor, the Representative for the Corporate Debtor and perused the documents placed on file.
The Operational Creditor has claimed an amount of Rs. 18,82,968.65p (Rs. 14,00,641.51p towards outstanding Invoices plus Rs. 4,82,327.14p towards interest) as outstanding against the Corporate Debtor, which the Corporate Debtor has failed to pay. Part-IV of the Application contains the details of the Invoices, date-wise amount and due date.
The brief facts of the case are that the Operational Creditor carries on business as freight, forwarders and provide logistics services and transportation services across all modes of transports to and from all parts of the world. In the course of its business, during April - May 2017, the Corporate Debtor had engaged the services of Operational Creditor for carrying out Freight forwarding along with transport services to import shipments through air and sea. The Operational Creditor is maintaining a running account towards all transactions entered into with the Corporate Debtor and it was agreed by the Corporate Debtor that for the services rendered by the Operational Creditor, the Corporate Debtor would clear the Invoices raised by the Operational Creditor as on date of Invoice. Thus, a total of 7 Invoices from 16.04.2017 to 23.05.2017, in all amounting to Rs. 16,00,641.51/- were raised to the Corporate Debtor.
In support of the claim, the Operational Creditor has referred to the various e-mail communications exchanged between the Operational Creditor and the Corporate Debtor with regard to the outstanding dues and part payments made thereof. Besides, the Operational Creditor has placed on record the statement of Ledger Account, wherein the amount of Rs. 14,00,641.51p is shown outstanding towards the Invoices.
The Operational Creditor has referred to the letter dated 11.01.2019 sent by the Operational Creditor to the Corporate Debtor regarding payment of dues wherein it is recorded that the Corporate Debtor has not made any payment towards its admitted dues and the Operational Creditor would initiate action under I&B Code, 2016.
The Operational Creditor has sent Form-3 Demand Notice dated 06.10.2018 under Section 8 of I&B Code, 2016 to the Corporate Debtor, wherein the total amount of debt claimed is being mentioned, to which a reply dated 16.10.2018 was given by the Corporate Debtor acknowledging the liability and admitting the entire outstanding amount of Rs. 18,82,968.65p due to the Operational Creditor.
The Operational Creditor has complied with Section 9(3)(b) & (c) of the I&B Code, 2016, by filing Affidavit, wherein under Para 16, it has been deposed that the Corporate Debtor has not given any notice of dispute or a pendency of a suit or arbitration proceedings in relation to the unpaid of operational debt. The bank certificate issued by DBS Bank has been placed on record.
The Manager of the Corporate Debtor viz., M.A. Narayanan has submitted that the Corporate Debtor at present is not in a position to make the payment and prayed to pass an appropriate order. Thus, there is a clear admission of the outstanding debt due to the Operational Creditor by the Corporate Debtor.
The Operational Creditor has fulfilled all the requirements of law for admission of Application and this Bench is also satisfied that the Corporate Debtor has committed default in making payment of the outstanding due as 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 a period of 180 days, reckoning from the date of this order.
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. Perumal Ulaganathan, is appointed as IRP, whose name appears in the Panel of Insolvency-Professionals recommended by the IBBI. There is no disciplinary proceedings pending against the IRP and his name is reflected in IBBI website. 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. Perumal Ulaganathan, Reg. No. IBBI/IPA-001/IP-P00970/2017-2018/11600 Email ID: apunathan@yahoo.co.in
Order is dictated and pronounced in open court in the presence of the Counsel for the Operational Creditor and Representative for the Corporate Debtor.