2019 (9) TMI 1298 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - Whether the dispute as raised by the Corporate Debtor is genuine or can be categorised as moonshine dispute? HELD THAT - Though the invoices were raised in 2011 but the Corporate Debtor has acknowledged its debt vide letter dated 30.01.2016 and issued cheques in lieu of payment of the debt. Irrespectively despite such acknowledgement of debt by issuance of cheque towards admitted outstanding amount as a matter of fact even considering the law in terms of Section 25(3) of the Indian Contract Act 1872 the matter is within the purview of Law of Limitation. The present application is complete and the Applicant is entitled to claim its dues establishing the default in payment of the operational debt beyond doubt. In the light of above facts and records the present application deserves to be admitted and this application is admitted. Application admitted - Moratorium declared.

Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Existence of operational debt and default.
3. Alleged pre-existing dispute between the parties.
4. Jurisdiction of the Tribunal.
5. Limitation period for the debt claim.
6. Appointment of Interim Resolution Professional (IRP).
7. Consequences of initiation of CIRP.

Detailed Analysis:

1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 of the Insolvency and Bankruptcy Code, 2016:
The application was filed by the Applicant, the Sole Proprietor of M/S J.K. Electrical, under Section 9 of the Insolvency and Bankruptcy Code, 2016, seeking the initiation of CIRP against Mec Shot Blasting Equipment Private Limited, the Corporate Debtor. The Applicant claimed to be an operational creditor and sought the resolution process due to non-payment of dues.

2. Existence of operational debt and default:
The Applicant supplied motors and switchgears to the Corporate Debtor as per purchase orders in 2011 and raised 27 invoices amounting to ?53,65,668. Despite multiple demands and partial payments through cheques and NEFT, a significant portion of the debt remained unpaid. The total operational debt claimed was ?1,24,25,009.01, including subsequent transactions and interests.

3. Alleged pre-existing dispute between the parties:
The Corporate Debtor argued that there was a pre-existing dispute, citing a civil suit for permanent injunction (C.O. No. 153/2018) filed by the Applicant. However, the Tribunal found that the civil suit was for preventing the sale of the Corporate Debtor's property and not related to the debt recovery. The Corporate Debtor did not dispute the invoices or their contents, and the Tribunal categorized the defense as a "moonshine dispute," lacking genuine evidence.

4. Jurisdiction of the Tribunal:
The Tribunal confirmed its jurisdiction to entertain and try the application as the registered office of the Corporate Debtor is situated in Jodhpur.

5. Limitation period for the debt claim:
Despite the invoices being raised in 2011, the Corporate Debtor acknowledged the debt through a letter dated 30.01.2016 and issued cheques for payment. The Tribunal held that the acknowledgment and subsequent actions brought the matter within the purview of the Law of Limitation, specifically under Section 25(3) of the Indian Contract Act, 1872.

6. Appointment of Interim Resolution Professional (IRP):
The Tribunal appointed Mr. Anoopkumar Goyal as the Interim Resolution Professional (IRP) since the Applicant did not propose any name. The IRP was directed to take necessary steps as per the statute, including issuing publications, calling for claims from creditors, and collating the same.

7. Consequences of initiation of CIRP:
Upon admission of the application, the Tribunal invoked the moratorium under Section 14 of the IBC, 2016, which prevents any legal action against the Corporate Debtor during the CIRP. The IRP was instructed to carry out the resolution process within the specified timelines and comply with the provisions of the IBC, 2016. The Operational Creditor was directed to deposit ?2,00,000 for the IRP's expenses and fees. The Tribunal also mandated cooperation from the Corporate Debtor's personnel and management.

Conclusion:
The Tribunal admitted the application for CIRP, appointed an IRP, and outlined the steps and consequences of the resolution process. The Tribunal found no genuine pre-existing dispute and confirmed the operational debt and default by the Corporate Debtor.

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