1. The Court is convened by video conference today.
2. This petition under 9 of the Insolvency and Bankruptcy Code, 2016read with Rule 6 of the Insolvency and Bankruptcy (ApplicationtoAdjudicating Authority) Rules,2016 has been filed by Nandakini ContractorsPvt. Ltd., having its registered office at 9, Ezra Street, Kolkata-700001, through its Director namely Mr. Sovan Sengupta, authorised videBoardResolution dated 11/03/2019 (Annexurer-A.1), (hereinafter referredastheOperational Creditor), seeking initiation of corporate insolvency resolutionprocess in respect of Chandni Commercials Private Limited, (CIN: U51909WB2003PTC096775), having its Registered office at 9, Ezra Street, 1st Floor, Room No. 23, Kokata-700001 (hereinafter referred as the CorporateDebtor).
3. It is submitted that the Operational Creditor was providing servicestothe Corporate Debtor as per the terms and conditions of the contract forservice agreement executed between the Operational Creditor andtheCorporate Debtor dated 26 th March, 2018, while providing staff for themanagerial works to be done, like One Security Guard, One Sweeper, charges incurred for two computers for supplying office stationery, expensesincurred for travelling and conveyance, expenses incurred towardstea, biscuits, snacks for staffs. Copy of the contract for service agreement betweenthe parties dated 26 th March, 2018 is (Annexure-A 4). It is submittedthat asum of Rs.4,93,217/- is due outstanding as per the working computationsheet (Annexure-A 5). It is submitted that this is an unsecured operational debt with no security held by the Operational Creditor.
4. When the Corporate Debtor did not pay the amount in spite of repeatedrequests and demands, a demand notice under section 8 of the Codewasissued on 8 th March, 2019.Similar letters had been previously issuedbythe Operational Creditor on 10 th August, 2018, 28 th August, 2018, 15 th September,2018, 2 nd November, 2018, 12 th December, 2018 and 20 th February, 2019. Itis submitted that Corporate Debtor also wrote letters dated 6 th September, 2018 and 16 th March, 2019.
5. It is submitted that default on account of payment of moneyforrendering services to the Corporate Debtor first occurred as per the contractfor service agreement on 30 th April, 2018.
6. The Operational Creditor proposed the name of Mr. TuhinKumarChatterjee, to act as an IRP having Registration No. IBBI/IPA-002/IP-N00663/2018-2019/12108, who has consented vide his affidavit andForm-2 and submitted that he has agreed to accept the appointment as IRPif anorder admitting the present application is passed by this AdjudicatingAuthority. He has further submitted that no disciplinary proceedingsarepending against him with the Board or Institute of Insolvency Professionalsof ICAI.
7. On being served with the notice of the court, the Corporate Debtor hasfiled its reply affidavit.
8. In the reply affidavit filed on behalf of the Corporate Debtor byoneof its Directors namely Pranab Kumar Das, it is submitted that the CorporateDebtor had sought time from the Operational Creditor for making payment of the outstanding amount. It is submitted that the Corporate Debtor isinthebusiness of trading and the Corporate Debtor admitted the service agreementdated 26 th March, 2018 between the Corporate Debtor and the Operational Creditor for providing all necessary day today office maintenance servicesasaconsideration, the applicant was supposed to raise invoices on monthlybasisand such amount should be within Rs.1,10,000/- per month. It is submittedin the reply that the Corporate Debtor started receiving services from the Operational Creditor from 1 st April, 2018 and all of a sudden, the Companyreceived a termination letter from the Operational Creditor on 10th August, 2018 without any prior notice due to non-payment of the pending billsraisedby the Operational Creditor.
9. It is further submitted that the Corporate Debtor requestedvideletterdated 6 th September, 2018, to the Operational Creditor for providingthemsome reasonable time to make the payment of the amount as the CorporateDebtor was unable to release the payment owing to the financial crisesof theCompany. It is stated that the company was going through very badfinancial condition due to non cooperation of the Corporate Debtor and as aresult of which, it could not arrange due payment of the Operational Creditor despiteall its endeavour to arrange the same. The Corporate Debtor has furthersubmitted in the reply that in spite of all the adverse financial position, tryingits best to arrange the amount.
10. In the rejoinder, the Operational Creditor has submittedthat theCorporate Debtor has clearly admitted the liability on their part topaytheoutstanding amount to the Operational Creditor and sought time to paythedebt. It is stated in the rejoinder that the intention of the Corporate Debtorisclear in their reply affidavit and the Corporate Debtor does not wishtopaythedebt of Rs.4,93,217/- and is seeking time to make the payment againandagain, which is the mala fide practice of the Corporate Debtor. It is submittedthat due to the failure of the Corporate Debtor in making payment, thefinancial condition of the Operational Creditor is also becoming very badandit is suffering from huge financial crises. It is prayed by the Operational Creditor that the petition filed by the Operational Creditor might be admitted.
11. We have seen the pleadings of the parties and also the documents.
12. The Operational Creditor has filed affidavit under section9(3)(b), wherein it is submitted that the Corporate Debtor has not givenanynoticerelating to the dispute of the unpaid operational debt.
13. In the reply to the demand notice dated 8 th March, 2019, the CorporateDebtor has clearly admitted their outstanding liability in the following words:-
“ To Dated 16.03.2019
The Director
Nandakini Contractors Pvt. Ltd.
9, Ezra Street, Kolkata-700001.
Ref: Demand Notice dated 08.03.2019
Dear Sir,
This has reference to the demand notice issued on 8 th March, 2019 against us. We are surprised to receive the same as we clearly put forth our request toyourgood office regarding our genuine willingness to repay the outstanding amount.
Therefore, further we request your good office to kindly consider our willingnessand give us the opportunity to discuss the same with you and we are readytofurther settlement for the repayment of the outstanding amount.
Thanking you,
Yours Faithfully.
For Chandni Commercial Private Limited
Authorised Representative”
14. In the another letter dated 6 th September, 2018, the Corporate Debtorhas further informed the Operational Creditor as under:-
“ To Dated 06.09.2018
The Director
Nandakini Contractors Pvt. Ltd.
9,Ezra Street, Kolkata-700001.
Ref: Your Letter dated 28.08.2018
Dar Sir,
This has reference to your above mentioned letter. We appreciate your patienceand understanding however, we regret to inform you that due to huge liquidityissue faced by our Company, the payment of outstanding in terms of theContract for service agreement, 2018 cannot be repaid at this juncture.
Therefore, you are kindly requested to consider us certain time andwewill make payment at the earliest as we are speaking to our contributoriestoarrange the due amount and repay as per our agreement.
Therefore, we would be highly grateful to you if you could kindly consider thepresent situation and grant us some time to repay the outstanding amount without taking any action against us.
Thanking you,
Yours Faithfully,
For Chandni Commercial Private Limited
Authorised Representative”
15. In view of the correspondence between the Operational Creditor andthe Corporate Debtor, the outstanding liability has been clearly admittedbythe Corporate Debtor and there is no plausible defence available totheCorporate Debtor. The Corporate Debtor has committed default inmakingpayment of admitted operational debt and in spite of repeated requestsanddemands for more than 4 years now. They have not been able to clear theirliability may be due to financial crises or otherwise, but the fact remainsthatthe default has occurred in repayment of operational debt.
16. The petition is otherwise complete in all respects.
17. In view of the aforesaid pleadings of the parties, we consider it tobeafit case for admission of the petition, we , therefore, pass the following orders:-
O R D E R S
i) The application filed by the Operational Creditor under Section9of the Insolvency & Bankruptcy Code, 2016 for initiating CorporateInsolvency Resolution Process against the Corporate Debtor, ishereby admitted.
ii) We hereby declare a moratorium and public announcement inaccordance with Sections 13 and 15 of the I & B Code, 2016.
iii) Moratorium is declared for the purposes referred to in Section14of the Insolvency & Bankruptcy Code, 2016. The I.R.P. shall causeapublic announcement of the initiation of Corporate InsolvencyResolution Process and call for the submission of claimsunderSection 15. The public announcement referred to in clause(b) of sub-section (1) of Section 15 of Insolvency & BankruptcyCode, 2016 shall be made immediately
iv) Moratorium under Section 14 of the Insolvency &BankruptcyCode, 2016 prohibits the following;
a) The institution of suits or continuation of pending suitsorproceedings against the Corporate Debtor including executionof any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority;
b) Transferring, encumbering, alienating or disposing of bytheCorporate Debtor any of its assets or any legal right or beneficial interest therein;
c) Any action to foreclose, recover or enforce any security interestcreated by the Corporate Debtor in respect of its propertyincluding any action under the SecuritisationandReconstruction of Financial Assets and Enforcement of SecurityInterest Act, 2002 (54 of 2002);
d) The recovery of any property by an owner or lessor wheresuchproperty is occupied by or in the possession of the corporatedebtor.
v) The supply of essential goods or services rendered to the corporatedebtor as may be specified shall not be terminated, suspended, orinterrupted during the moratorium period.
vi) The provisions of sub-section (1) shall not apply tosuchtransactions as may be notified by the Central Government inconsultation with any financial sector regulator.
vii) The order of moratorium shall have effect fromthe dateof admission till the completion of the corporate insolvency resolution process.
viii) Provided that where at any time during the Corporate InsolvencyResolution Process period, if the Adjudicating Authority approvesthe resolution plan under sub-section (1) of Section 31 or passesanorder for liquidation of the corporate debtor under Section33, themoratorium shall cease to have effect fromthe date of suchapproval or liquidation order, as the case may be.
ix) Mr. Tuhin Kumar Chatterjee, IRP, registered with InsolvencyandBankruptcy Board of India, having Registration No. IBBI/IPA-002/IP-N00663/2018-2019/12108,and holding AFAunderRegulation 7-A of the IBBI (Insolvency Professionals) Regulations, 2016, is hereby appointed as Interim Resolution Professional forascertaining the particulars of creditors and conveningaCommittee of Creditors for evolving a resolution plansubject toproduction of written consent within one week fromthe dateof receipt of this order.
x) The Interim Resolution Professional should convene a meetingof the Committee of Creditors and submit the resolutionpassedbythe Committee of Creditors and shall identify the prospectiveResolution Applicant within 105 days fromthe insolvencycommencement date.
xi) The Operational Creditor/Applicant is directed to depositRs.50,000/- (Rupees Fifty Thousand only ) withtheIRPappointed hereinabove within three days fromthis order. IRPcanclaim the preliminary expenses and fees subject to the approval bythe CoC and after constitution of CoC.
18. Registry is hereby directed to communicate the order to the Operational Creditor, the Corporate Debtor, the I.R.P. and the jurisdictional Registrar of Companies by Speed Post as well as through email.
19. List the matter on 12/05/2022 for filing of Progress Report.
20. Certified copy of the order may be issued to all the concernedparties, if applied for, upon compliance with all requisite formalities.
