2019 (7) TMI 1544 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment - Section 241-242 of the Companies Act. 2013 - HELD THAT - From the definition of Operational creditor and Operational Debt , it can be seen that the respondent through employment agreement itself agreed about the remuneration to be paid to the applicant by the respondent and the claim of outstanding payments to applicant comes within the definition of Operational Debt. There being default in payment of claimed amount, and the respondent has failed to establish the fact that there is a pending dispute between the parties in respect of the amount claimed, such application deserves to be admitted for triggering Corporate Insolvency Resolution Process against the respondent corporate debtor - In compliance of Section 9 (3) (b) an affidavit confirming that no letter of dispute has been received by the petitioner. The present petition is complete and there has been default in payment of dues by the respondent. Therefore, on fulfilment of the requirements of section 9 (5) (i) (a) to (d) of the Code, the present petition is hereby admitted. Petition admitted - Moratorium declared.

Summary

Issues:
Petition under section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency process. Claim of outstanding payments for salary as operational debt. Dispute raised by Corporate Debtor regarding misappropriation of funds and breach of shareholder's agreement. Admittance of the petition and declaration of moratorium. Appointment of Interim Resolution Professional.

Analysis:
The petition was filed under section 9 of the Insolvency and Bankruptcy Code, 2016, seeking initiation of Corporate Insolvency process against the respondent Corporate Debtor. The petitioner, an individual, claimed outstanding payments for salary as per an employment agreement. The Corporate Debtor failed to pay the salary for specific months despite assurances, leading to the petition. The Corporate Debtor admitted the dues but linked payment to settling other creditors, raising objections against the petition based on alleged misappropriation and breach of terms. However, the dispute raised by the Corporate Debtor was managerial, not related to the amount claimed by the petitioner.

The Tribunal examined the definitions of "Operational Creditor" and "Operational Debt" under the Code, noting that the claimed amount fell within the scope of operational debt as per the employment agreement. The Corporate Debtor's failure to pay the claimed amount without establishing a pending dispute warranted the admission of the petition. The Tribunal confirmed compliance with necessary affidavits and admission requirements under the Code, leading to the acceptance of the petition for Corporate Insolvency Resolution Process against the respondent.

In accordance with the Code, the Tribunal declared a moratorium and directed the Interim Resolution Professional to make a public announcement. The moratorium imposed various restrictions on legal actions against the Corporate Debtor's assets and property. Exceptions were outlined for essential goods/services and surety under specific circumstances. The Tribunal appointed an Interim Resolution Professional to manage the affairs of the Corporate Debtor during the resolution process, emphasizing cooperation and adherence to legal obligations.

Additionally, the Tribunal addressed discrepancies in the statement of account and the role of the Information Utility in determining the amount due. As the Information Utility was not fully functional, the Resolution Professional was tasked with seeking corrections from the ex-promoter/director for fairness. The petitioner was directed to pay a specified sum to the Interim Resolution Professional for expenses, subject to adjustment by the Committee of Creditors. The order was to be communicated to all relevant parties, including the Board, within a specified timeframe.