2018 (2) TMI 1954 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of outstanding dues - existence of debt and dispute or not - Whether the respondent succeeded in proving the existence of a genuine dispute as alleged in the reply of the Corporate Debtor? - HELD THAT - The corporate debtor failed to establish existence of a dispute falls within the purview of section 5(6) of the I B Code. So also the corporate debtor failed in proving existence of dispute as held in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED 2017 (9) TMI 1270 - SUPREME COURT . The claim made by the operational creditor is not at all hit by section 9(5)(ii)(d) of the I B Code as contended on the side of the corporate debtor. The application file under section 9 of I B code on the other hand is complete. There is no repayment of the unpaid operational debt. No insolvency professional is proposed by the operational creditor. Hence compliance of section 9(5)(2)(e) doesn t arise. This application filed under section 9 of the I B Code is liable to be admitted - Application admitted - moratorium declared.

Summary

Issues Involved:
1. Existence of a pre-existing dispute between the Operational Creditor and the Corporate Debtor.
2. Legitimacy of the debt claimed by the Operational Creditor.
3. Application of the moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016.
4. Appointment of an Interim Resolution Professional (IRP).

Issue-Wise Detailed Analysis:

1. Existence of a Pre-Existing Dispute:
The Corporate Debtor contended that there were pre-existing disputes regarding the quality and quantity of coal supplied by the Operational Creditor and its subsidiary, Gandhar Global Singapore Pvt. Limited. The Corporate Debtor claimed a short supply and inferior quality of coal, resulting in significant financial losses. The Corporate Debtor argued that these disputes fell within the meaning of Section 5(6) of the Insolvency and Bankruptcy Code, 2016. The Tribunal examined the ledger entries and correspondence between the parties, noting that the Operational Creditor had adjusted a sum of ?90,31,549.80 due to the substandard supply by its subsidiary. However, the Tribunal found that the Corporate Debtor failed to establish the existence of a genuine dispute under Section 5(6) of the I&B Code, as the claims were not substantiated with sufficient evidence.

2. Legitimacy of the Debt Claimed by the Operational Creditor:
The Operational Creditor claimed an outstanding debt of ?3,40,55,686, including interest at 24% per annum. The Corporate Debtor disputed this claim, asserting that the amount should be set off against the dues from Gandhar Singapore Pvt. Ltd. The Tribunal noted that the Operational Creditor had no contractual obligation to adjust claims related to its subsidiary. The Tribunal also observed that the Operational Creditor had transferred the outstanding debt to the bad debt account as per its accounting policy, which did not absolve the Corporate Debtor from its liability. The Tribunal concluded that the debt claimed by the Operational Creditor was legitimate and not hit by Section 9(5)(ii)(d) of the I&B Code.

3. Application of the Moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016:
The Tribunal ordered the application of the moratorium under Section 14 of the I&B Code, which includes:
- Suspension of all suits or proceedings against the Corporate Debtor.
- Prohibition on transferring, encumbering, or disposing of any assets of the Corporate Debtor.
- Prohibition on actions to foreclose or enforce any security interest created by the Corporate Debtor.
- Continuation of the supply of essential goods or services to the Corporate Debtor.

4. Appointment of an Interim Resolution Professional (IRP):
The Tribunal appointed Mrs. Savita Agarwal as the Interim Resolution Professional (IRP) with the registration number IBBI/IPA-001/IP-P00101/2016-17/10201. The Registry was directed to issue communication to the IRP and make the necessary public announcement as per Section 15 of the I&B Code, 2016.

Conclusion:
The application filed under Section 9 of the Insolvency & Bankruptcy Code, 2016, was admitted. The Tribunal found that the Corporate Debtor failed to prove the existence of a genuine dispute and that the debt claimed by the Operational Creditor was legitimate. The moratorium under Section 14 of the I&B Code was applied, and an IRP was appointed to commence the Corporate Insolvency Resolution Process (CIRP).