2018 (5) TMI 1965 - Tri - Insolvency and Bankruptcy

Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - The occurrence of default is established, According to the Bank Statement on record, between 23-09-2017 to 01-12-2017, no credit of ₹ 84,33,605/- is appearing. Records of the case contains the monthly Bills of Professional Fees and evidence of deduction of TDS on Form No.26AS, however, no evidence is produced from the side of the Respondent that either paid the amount or disputed the claim. Several opportunities have been granted, Notices were issued, but the Respondent preferred silence. On the date of hearing one of the Directors remained present but not seriously contested. Accordingly, the impugned Debt is held to be still outstanding from the Corporate Debtor. Considering the circumstances mentioned, this Petition under consideration deserves to be Admitted . Petition admitted - moratorium declared.

Summary

Issues:
1. Initiation of Corporate Insolvency Resolution Process under Section 9 of the Insolvency & Bankruptcy Code, 2016 for outstanding Operational Debt.
2. Allegation of non-payment of monthly Bills of "Retainership Fees" by the Corporate Debtor.
3. Failure of the Corporate Debtor to clear the outstanding Debt despite Notice under Section 8.
4. Appointment of Interim Resolution Professional (IRP) and commencement of Insolvency Resolution Process.

Analysis:
1. The Petitioner, an Operational Creditor, filed a Petition under Section 9 of the Insolvency & Bankruptcy Code, 2016, seeking initiation of Corporate Insolvency Resolution Process against the Corporate Debtor for an outstanding Operational Debt of &8377; 84,33,605. The claim was based on unpaid Retainership Fees billed from 2013 to 2017, with evidence of deduction of TDS but non-payment by the Debtor. The Petitioner provided detailed terms of the agreement and communication requesting payment, establishing the default by the Corporate Debtor.

2. The Petitioner alleged that despite issuing a Notice under Section 8 and providing opportunities for the Debtor to clear the outstanding Debt, no response or payment was received. The Petitioner presented a bank statement confirming non-receipt of the claimed amount from the Debtor during the specified period. The Debtor's failure to dispute the claim or provide evidence of payment was noted, leading to the establishment of the default by the Corporate Debtor.

3. The Tribunal, after considering the facts and circumstances, found the occurrence of default to be established. The Corporate Debtor's silence, lack of dispute, and non-payment of the outstanding Debt were crucial factors in determining the validity of the claim. Despite opportunities and notices, the Debtor remained non-responsive, leading to the decision to admit the Petition and initiate the Corporate Insolvency Resolution Process.

4. The Tribunal approved the appointment of an Interim Resolution Professional proposed by the Petitioner and directed the commencement of the Insolvency Resolution Process. The declaration of "Moratorium" was pronounced, prohibiting legal proceedings against the Debtor and ensuring the continuity of essential supplies during the resolution process. The Tribunal outlined the duties of the IRP, the process for Resolution Plan submission, and the necessity of compliance with the Code throughout the resolution period.

In conclusion, the judgment admitted the Petition, initiated the Corporate Insolvency Resolution Process, appointed an IRP, and implemented necessary measures to facilitate the resolution of the outstanding Operational Debt in accordance with the Insolvency & Bankruptcy Code, 2016.