9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (5) TMI 380 - AT - Insolvency and BankruptcyAdmissibility of CIRP u/s 9 of the IBC - petition filed without delivery of a demand notice under Section 8 of the IBC - Appellant is liable to pay the outstanding dues to the Operational Creditor or not - existence of debt or not - time limitation - HELD THAT - There is no tripartite agreement on record which could have guided the mode and responsibilities of payment. Without any agreement in place, in the facts of the instant case, the responsibility to repay the outstanding dues remains on the Appellant. As the IBC proceedings are self-contained which govern the course of action in such situations, the Appellant cannot take refuge of Section 230 Indian Contract Act, 1872 that the agent cannot personally enforce, nor be bound by, contracts on behalf of principal and pass on its liability to VIL. Validity or otherwise of the service of Demand notice - HELD THAT - Demand notice dated 31.07.2018 was sent by registered post on 01.08.2018 to the registered address of the Corporate Debtor, which was not replied to by the Corporate Debtor. Some documentary evidence is available on record, which includes the details of the India Post and the postal receipt, which indicate that the demand notice has been issued, even though the addresses are not fully legible and correct in the receipt and acknowledgement. This will not make any material difference as both parties have been dealing in business for long and were continuously exchanging lot of emails - Furthermore, the Applicant never disputed the address on which the demand notice was issued to the Corporate Debtor. But it has merely questioned the failure of proof of the service of the statutory demand notice, which appears to be spurious granted and unsustainable. The Adjudicating Authority has clearly brought out that as per records, the date of default is 12.12.2015. The TMPL acknowledged the debt and paid certain invoices and also facilitated in barter arrangement in the year 2017. Later on, there is an admission of liability by way of emails dated 21.07.2017 and again on 18.09.2017, which amounts to the admission of liability. Since there is an admission of liability on 18.09.2017, their cannot be any question of claims to be time barred as the period of limitation starts afresh from the date of admission of 18.09.2017. There is a clear admission with respect to the unpaid invoices / outstanding dues by the Corporate Debtor, with no dispute or denial of any kind. It is clearly brought out that there is a debt in terms of Section 5(21) of the Code and that there is also a default in terms of Section 3(12) of the Code and also the debt is within the period of limitation and there is no dispute raised at any point of time. Therefore, the Adjudicating Authority has rightly come to the conclusion that it satisfies the requirement for admission under Section 9 for Corporate Insolvency Resolution Process. There are no error in the orders of the Adjudicating Authority - appeal dismissed.
Issues Involved:
1. Disputed Debt/Liability 2. Agency Relationship and Liability 3. Service of Demand Notice 4. Board Resolution for Authorized Signatory 5. Admission of Debt and Default 6. Period of Limitation Summary: 1. Disputed Debt/Liability: The Appellant contended that the debt was disputed and that TMPL did not owe any operational debt to the Respondent. It argued that TMPL acted merely as an agent of Videocon Industries Limited (VIL) and, under Section 230 of the Indian Contract Act, 1872, could not be held liable for VIL's dues. The Appellant also claimed that the Respondent failed to prove the service of the demand notice issued u/s 8 of the Insolvency & Bankruptcy Code, 2016. 2. Agency Relationship and Liability: TMPL provided services to various clients, including VIL, by placing advertisements through TMPL. The Respondent published these advertisements and raised invoices in VIL's name, delivered to TMPL. The Appellant argued that TMPL was only an agent and not liable for the debts of VIL, as per Section 230 of the Indian Contract Act, 1872. 3. Service of Demand Notice: The Appellant claimed that the petition u/s 9 of the IBC was filed without delivering a demand notice u/s 8 of the IBC, which is mandatory. The Appellant argued that the Respondent failed to prove the service of the demand notice, as the tracking receipt and delivery acknowledgment were insufficient. 4. Board Resolution for Authorized Signatory: The Appellant raised the issue of an improper board resolution for the authorized signatory of the Respondent, questioning the validity of the demand notice and subsequent proceedings. 5. Admission of Debt and Default: The Respondent argued that the impugned order was well-reasoned and based on merits, with a clear existence of debt and default. It contended that the demand notice was duly served, and the Appellant never disputed the unpaid invoices. The Respondent relied on the presumption of service of notice under Section 27 of the General Clauses Act, 1897, and Section 114 Illustration (f) of the Evidence Act. 6. Period of Limitation: The Adjudicating Authority noted that the date of default was 12.12.2015, and the debt was acknowledged by TMPL through emails dated 21.07.2017 and 18.09.2017. This acknowledgment reset the limitation period, making the claim within the limitation period. Conclusion: The Tribunal concluded that there was a debt in terms of Section 5(21) of the Code, a default in terms of Section 3(12) of the Code, and no dispute was raised at any point. The Adjudicating Authority correctly admitted the application u/s 9 for Corporate Insolvency Resolution Process. The appeal was dismissed with no order as to cost.
|
