2017 (8) TMI 1390 - Tri - Insolvency and Bankruptcy

Initiation of Insolvency Resolution process - outstanding debt - Held that - As to the principal amount shown as ₹ 22,32,678 in respect of the invoice amount in the notice given u/s.434 of the Companies Act, 1956, the Petitioner says that calculation inadvertently has come to ₹ 22,32,678 without deduction of ₹ 4,400 gone towards transport charges on behalf of the Debtor Company which subsequently the Debtor paid to the Petitioner, that amount has been deducted when the Company Petition was filed u/ss.433 and 434 of the Companies Act, 1956. Since this variation has been explained in Company Petition, we are of the view that defence taken in respect to variation of the amount, have no sense after taking the explanation given by the Petitioner in the Company Petition into consideration. For having the Corporate Debtor admitted the liability except saying adjustments should have been made against the invoices first in point of time, this Bench hereby holds that it is a fit case for admission. Accordingly, this Petition is admitted declaring Moratorium with directions.

Summary

Issues involved:
Company petition under sections 433 & 434 of the Companies Act, 1956 transferred to NCLT for insolvency resolution process initiation against a Corporate Debtor. Dispute regarding adjustment of part payments made by the Corporate Debtor against outstanding invoices. Jurisdictional transfer from the High Court to NCLT due to the introduction of the Insolvency & Bankruptcy Code, 2016.

Detailed Analysis:

Issue 1: Company petition under sections 433 & 434 of the Companies Act, 1956 transferred to NCLT for insolvency resolution process initiation against a Corporate Debtor.
The petitioner, an Operational Creditor, filed a Company Petition against the Corporate Debtor before the High Court of Bombay, which was later transferred to the NCLT due to the introduction of the Insolvency & Bankruptcy Code, 2016. The petitioner classified itself as an Operational Creditor and filed Form 5 under the Insolvency & Bankruptcy Code, 2016, seeking initiation of the insolvency resolution process against the Corporate Debtor.

Issue 2: Dispute regarding adjustment of part payments made by the Corporate Debtor against outstanding invoices.
The petitioner, a Proprietary Concern supplying raw materials, raised 13 invoices against the Corporate Debtor for a total amount. The Corporate Debtor made part payments on various dates, and the petitioner adjusted these part payments against the outstanding dues to avoid limitation. The Corporate Debtor claimed there was an understanding to clear payments in chronological order, disputing the adjustment made by the petitioner. The Corporate Debtor's defense was based on the sequence of payments and the alleged understanding between the parties.

Issue 3: Jurisdictional transfer from the High Court to NCLT due to the introduction of the Insolvency & Bankruptcy Code, 2016.
Since the matter was transferred from the High Court to the NCLT, the NCLT bench analyzed the details provided in Form 5 filed by the petitioner as per the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The NCLT admitted the petition, declaring a moratorium and issuing specific directions to prohibit suits, continuation of proceedings, and asset disposal by the Corporate Debtor during the moratorium period.

The judgment highlighted the application of relevant legal provisions, including Section 60 of the Contract Act, 1872, and Section 19 of the Limitation Act. The decision emphasized the absence of explicit directions from the Corporate Debtor regarding the adjustment of part payments against specific debts. The NCLT held that the petitioner had provided sufficient evidence of the outstanding debt and the default by the Corporate Debtor, justifying the admission of the petition for insolvency resolution. The order included directions for the appointment of an Insolvency Professional and the communication of the moratorium to both parties involved.

In conclusion, the detailed analysis of the judgment showcases the legal intricacies involved in the dispute between the Operational Creditor and the Corporate Debtor, leading to the admission of the petition for insolvency resolution by the NCLT. The judgment's thorough examination of the parties' claims, defenses, and legal provisions demonstrates a comprehensive approach to resolving the dispute and initiating the insolvency resolution process.