2019 (10) TMI 1246 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - existence of default or not - section 9 of the Insolvency Bankruptcy Code, 2016 - HELD THAT - No doubt IBC is a summary proceeding and in such proceedings the Tribunal is not supposed to act as an Trial Court. It is also not expected that what would be the fate of suit/disputed. Ultimately and at the stage of admission what is to be looked upon is that there is a pre existing dispute as regard to the claims made by an Operational Creditor or not. The dispute has been defined in section 5(6) of the IBC, 2016. In the present case, none of the conditions mentioned in the said section exist in the suit filed by the Corporate Debtor in a sense that the suit is in the realm of allegation and that too with reference to misconduct mainly of its employee. It is also settled by judicial decision that dispute must not be frivolous and should not have been created to avoid payment of legitimate debts - This fact by itself is sufficient to make the contention of corporate debtor devoid of merits. If such kind of mechanism adopted by the corporate debtor is allowed in the IBC proceedings then none of the Operational Creditors would ever be able to initiate CIRP and thus, the very object of the IB Code would be defeated. That application filed under section 7 of IBC is complete in all respects and complies with the requirements of IB Code read with relevant regulations and the debt is not barred by limitation - Application admitted - moratorium declared.

Summary

Issues:
Application under Sec.9 of Insolvency & Bankruptcy Code, 2016 for initiation of corporate insolvency resolution process against the corporate debtor. Dispute regarding unpaid invoices and alleged collusion between operational creditor and employee of corporate debtor. Suit pending before Hon'ble High Court at Calcutta. Examination of pre-existing dispute under Sec.5(6) of IBC. Appointment of Interim Resolution Professional. Compliance with requirements of IB Code for admission of application.

Detailed Analysis:

1. Application under Sec.9 of IBC: The operational creditor filed an application under Sec.9 of the Insolvency & Bankruptcy Code, 2016 against the corporate debtor for a claimed default amount of &8377; 48,71,688 occurring in June 2016. The factual background includes the supply of goods, payment issues, and pending invoices since May 2015.

2. Dispute and Allegations: The corporate debtor alleged collusion between the operational creditor and its employee, leading to inflated bills and extra payments. A suit was filed before the Hon'ble High Court at Calcutta, which the operational creditor argued was irrelevant to the proceedings under Sec.9 as it pertained to alleged misconduct of its own employee.

3. Examination of Pre-existing Dispute: The Tribunal examined the existence of a pre-existing dispute as per Sec.5(6) of IBC, which includes disputes related to the amount of debt, quality of goods or services, and breach of representation or warranty. The Tribunal found that the suit filed by the corporate debtor did not meet the conditions mentioned in Sec.5(6) and was more focused on allegations of misconduct.

4. Appointment of Interim Resolution Professional: The Tribunal approved the name of an Interim Resolution Professional and highlighted the importance of appointing a qualified professional without any pending disciplinary proceedings. The IRP was tasked with initiating the Corporate Insolvency Resolution Process and managing the claims submission process.

5. Compliance and Admission: The Tribunal found the application under Sec.7 of IBC to be complete and in compliance with relevant regulations, admitting the application for initiating the Corporate Insolvency Resolution Process against the corporate debtor. A moratorium was declared, and public announcements were ordered in accordance with the relevant sections of the IBC.

6. Further Directions: The Tribunal issued various orders regarding the moratorium, appointment of IRP, payment of fees, conducting CIRP in a time-bound manner, and communication of the order to all concerned parties. The matter was listed for a progress report, and certified copies of the order were to be issued upon compliance with formalities.

This detailed analysis covers the key aspects of the judgment, including the application process, examination of disputes, appointment of IRP, compliance requirements, and further directions issued by the Tribunal for the Corporate Insolvency Resolution Process.