Application U/S 9 of the Insolvency and Bankruptcy Code, 2016 along with affidavit

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI BENCH AT NEW DELHI

C.P. NO (IB)………....….OF 20--

IN THE MATTER OF

-----------------                        ..…. Operational Creditor/Applicant

VS.

------------------                        …… Corporate Debtor/Respondent

AN APPLICATION UNDER SECTION 9 OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016

PAPER BOOK

(FOR INDEX KINDLY SEE INSIDE)

APPLICANT

Through

                                                                                        Advocate

  BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI BENCH AT NEW DELHI

C.P. NO (IB)………....….OF 20--

(UNDER RULE 6 OF THE INSOLVENCY AND BANKRUPTCY APPLICATION TO ADJUDICATING AUTHORITY) RULES, 2016)

IN THE MATTER OF

-----------------                        ..…. Operational Creditor/Applicant

VS.

------------------                        …… Corporate Debtor/Respondent

INDEX

Date                                                                        APPLICANT

New Delhi

Through

                                                                                        Advocate

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI BENCH AT NEW DELHI

C.P. NO (IB)………....….OF 20--

IN THE MATTER OF

-----------------                        ..…. Operational Creditor/Applicant

VS.

------------------                        …… Corporate Debtor/Respondent

NOTICE OF MOTION

Date: ___________ ___, 20--

From:      

                 Through Counsel:

To:    The Registrar,

National Company Law Tribunal,

New Delhi Bench

Concerning:

-------------

 (Through its Managing Director)

                                         ………………………Corporate Debtor

The Party named above request that the Tribunal grant the following relief:

1. To admit the application/petition and pass an order for initiating the Corporate Insolvency Resolution Process U/S 9 of the Insolvency and Bankruptcy Code, 2016;

2.    To appoint an Interim Resolution Professional in terms of section 16(3) of the Code;

3. To cause a public announcement of initiation of Corporate Insolvency Resolution Process and calling for submission of claims u/s 15 of the Code and in terms of section 13 of the Code;

4.    To declare moratorium in terms of section 14 of the Code. 

For the following reasons:

1.    Because the Corporate Debtor has defaulted in making the payment of the operational debt to the applicant/petitioner. The Corporate Debtor has failed to make the payments to the services rendered by the operational creditor in compliance to terms of the work order/s.

Further the Partie(s) named above request that the Tribunal grant the following interim and ad-interim reliefs:

1. Restraint the Directors of the Corporate Debtor from alienating, disposing of, encumbering, creating third party interest in movable or immovable assets of the Corporate Debtor;

2.  Restraint the Directors of the Corporate Debtor from sub-letting/ parting with the possession of the immovable assets of the Corporate Debtor;

3.    Pass such other order or orders as this Hon’ble Tribunal may deem fit, proper and just in the circumstances of the matter.

For the following reasons:

i)     Because Directors of the Corporate Debtor have, jointly and severally committed an offence by not making the payment to the invoices raised by the Operational Creditors on a regular basis for the services rendered by them.

ii)   Because by the abovementioned modus operandi, the Directors of the Corporate Debtor and their unknown  accomplices are in conspiracy with each other and had dishonest intentions from the very beginning.

iii)     Because in the aforesaid facts and circumstances, it is necessary that an interim and ad interim reliefs be passed as prayed for in the instant application, the Petitioner have a strong prima facie case and the balance of convenience is in the favour of the Petitioner. Unless, Order as prayed for herein are passed, the Petitioner will suffer irreparable loss, injury and mental agony.

APPLICANT

Date:      .    .20                          Through

Place: New Delhi                                              

                                                                                       Advocate

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI BENCH AT NEW DELHI

C.P. NO (IB)………....….OF 20--

(UNDER RULE 6 OF THE INSOLVENCY AND BANKRUPTCY APPLICATION TO ADJUDICATING AUTHORITY) RULES, 2016)

IN THE MATTER OF

-----------------                        ..…. Operational Creditor/Applicant

VS.

------------------                        …… Corporate Debtor/Respondent

MEMO OF PARTIES

------------------

 (Through its Director)

...…. Operational Creditor/Applicant

VERSUS

---------------------

 (Through its Managing Director)

……..Corporate Debtor/Respondent

    APPLICANT

Date:      .   .20--               Through               

Place: New Delhi     

                                                                                         Advocate

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI BENCH AT NEW DELHI

C.P. NO (IB)………....….OF 20--

IN THE MATTER OF

-----------------                        ..…. Operational Creditor/Applicant

VS.

------------------                        …… Corporate Debtor/Respondent

BRIEF SYNOPSIS

The present petition is filed u/s 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC”) (Application to Adjudicating Authority) Rules, 2016 by the applicant--------------being an ‘Operational Creditor’ as defined U/s 5(20) of IBC against the above stated Corporate Debtor. The brief facts constituting the cause of action for filing the present application as under:-

1.    That the applicant is the Private Limited company duly incorporated under the provisions of the Companies Act and is a leading services provider in the ---------------and is hereinafter referred as ‘the Operational Creditor’ for sake of brevity. 

2.  That various Work Orders issued from time to time for providing services related to civil work comprising of--------------- by the Corporate Debtor with the Operational Creditor.

3.  That in compliance with the aforesaid Work Orders, the Operational Creditor carried out the requisite civil work---------------- for the Corporate Debtor from time to time and consequently, the invoices were raised for the service so supplied by the Operational Creditor from time to time. The invoices raised by the Operational Creditor are as follows:

4.    The Corporate Debtor also made payments intermittently, however, the said payments were made sporadically and irregularly.

5.    That there is a total outstanding debt of Rs ------as is apparent from the invoices raised from the month of----------- which are unpaid and the said amount had become due on the respective dates when the abovementioned invoices were raised and said amount is still outstanding and since thereafter, despite reminders no payment has been made.

6.    That the applicant made various reminders to the corporate debtor but didn’t receive any response whatsoever. On ------- the applicant sent a demand notice for the outstanding amount to the corporate debtor enclosing with all the invoices raised for that period and other essential documents.

7.    That despite service of the demand notice, the Corporate Debtor failed to make any payment till date to the Operational Creditor and rather, has sent a false and frivolous reply baselessly alleging defects in the services provided by the Operational Creditor, although no such plea had ever been raised by it at any earlier point of time.  It is pertinent to mention that the operational creditor has duly complied with all work orders issued by the Corporate Debtor from time to time and no alleged dispute existed between the parties whatsoever. Further the alleged letter dated ----------- pertaining to damages issued by corporate debtor was itself a counter blast to the FIR No ________ which was registered on complaint of the Operational Creditor against the Corporate Debtor.

8.         That the Corporate Debtor has committed ‘default’ as defined in the IBC, 2016 and is liable to be subjected to the process of Insolvency Resolution.

9.         Hence the present application.

BEFORE THE NATIONAL COMPANY LAW TRIBUNAL

NEW DELHI BENCH AT NEW DELHI

C.P. NO………....….OF 20--

IN THE MATTER OF

-----------------                        ..…. Operational Creditor/Applicant

VS.

------------------                        …… Corporate Debtor/Respondent

LIST OF DATES & EVENTS 

THE BRIEF FACTS CONSTITUTING THE CAUSE OF ACTION FOR FILING THE PRESENT APPLICATION ARE AS UNDER:

1.  The Operational Creditor is the Private Limited Company duly incorporated under the provisions of the Companies Act and is a leading Services provider in the field of civil works, water proofing, strengthening, retro fitting and core cutting; and is hereinafter referred as ‘the Operational Creditor’ for sake of brevity.

2.  The Corporate Debtor is a company registered under the provision of the Companies Act, 1956 having its registered office at----------------. The copy of the Master Data of the Corporate Debtor as obtained from the official website of Ministry of Corporate Affairs is enclosed herewith as Annexure-A/8.

3.  That the various work orders issued from time to time for carrying out services related to civil work comprising of water proofing and other allied activities was allotted to the operational creditor by the corporate debtor.

4.    That the operational creditor was duly rendering the services in compliance to the requisites of the work orders and raising the invoices accordingly.

5.    That the corporate debtor had been sporadic and irregular in making payments. However, the operational creditor provided continued services being in the credence that the corporate debtor will make the payment of the outstanding balance and therefore, was completely unaware of the mala fide intentions of the corporate debtor.

6.    That there is a total outstanding debt of Rs ------------as is apparent from the invoices raised from the month of -------------which are unpaid and the said amount had become due on the respective dates when the abovementioned invoices were raised and said amount is till date outstanding.

7.    That many reminders were made to the corporate debtors in regards to the unpaid dues, but no payment was made by the corporate debtor in respect of the outstanding amount.

8.    That the operational creditor had sent a demand notice to the corporate debtor Under Rule 5 of the Insolvency and Bankruptcy (Application to Authority) Rules, 2016 for the unpaid debt of -----------. Despite of the fact no efforts or steps were made by the corporate debtor to clear the dues of the operational creditor. The Corporate Debtor has not given any reason for not making the payment of the unpaid debt which is still lying as outstanding------------, which apparently shows the malicious and mendacious motive of the corporate debtor.

9.    That in the view of the Corporate Debtor choosing to avoid liquidating its liability towards the applicant, it apparent that the Corporate Debtor has neglected to make the payment due towards the applicant. On the other hand the applicant is going through monetary loss and mental agony. The applicant is facing loss of reputation in the market which can’t be computed in the terms of money, as they are unable to deliver their services to the other clients in paucity of funds, as result of which the goodwill of the applicant is damaged in the market as well as between the clients of the applicant.

10. In the view of the aforesaid, it is submitted that the Corporate Debtor is deemed to be unable to pay the debts within the meaning of the provisions of the Insolvency and Bankruptcy Code 2016.

11. It is evident from the facts and details in the petition that the Corporate Debtor is not in a position to meet its current liabilities. It is commercially deemed to be insolvent and in other words the existing liabilities cannot be met and paid by the Debtor. It is unable to pay its debts and liabilities that arise in the normal course of business. Further the Debtor Company has omitted to make the payment to the applicant without any cogent reason.

12. The Corporate Debtor Company has its registered office within the territorial jurisdiction of this Hon’ble Court, therefore has necessary territorial jurisdiction to adjudicate the present petition.

13. It is therefore humbly prayed that the Debtor Company is liable to pay the applicant the amount of ------------ with interest.

APPLICATION BY OPERATIONAL CREDITOR(S) TO INITIATE CORPORATE INSOLVENCY RESOLUTION PROCESS UNDER THE CODE.

[Under section 6 of the Insolvency and Bankruptcy Code, 2016 (Application to Adjudicating Authority) Rules, 2016]

Date:   .    .20--

To,

The National Company Law Tribunal

New Delhi Bench

Block No-3, Ground Floor, 6^th, 7^th, & 8^th Floor

CGO Complex, Lodhi Road,

New Delhi-11003

From,

 ---------------

 (Through its Director)

IN THE MATTER OF

-----------------                        ..…. Operational Creditor/Applicant

VS.

------------------                        …… Corporate Debtor/Respondent

Subject: Application to initiate corporate insolvency resolution process in the matter of “-----------------having its office at ------------under the Insolvency and Bankruptcy Code, 2016.

Madam/Sir,

------------------hereby submit this application to initiate a corporate insolvency resolution process in the matter of-----------------. The details for the purpose of this application are set out below:

PART-I

PART-II

PART - III

Part – IV

PART-V

I, _______________certify that, to the best of my knowledge, -------------- is fully qualified and permitted to act as an insolvency professional in accordance with Code and rules and regulations made thereunder.[WHERE APPLICABLE]

---------------. have paid the requisite fee for this application of Rs. ---------- by way of Demand Draft drawn on ______ dated ______.

Yours Sincerely, 

Instructions-

Please attach the following to this application:-

Advocate for the Applicant/Petitioner

Details of the invoices:-