2019 (2) TMI 1831 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - The application in Form 5 is complete in all respects - The petitioner-operational creditor has filed this petition in prescribed form after expiry of 10 days of service of demand notice and thereby, complying with the requirement of sub-sections (1) and (2) of Section 9 of the Code. The petitioner has also complied with various requirements of sub-clauses of sub-section (3) of Section 9 of the Code. The bank statement issued by Union Bank of India, where the petitioner is maintaining its account is also filed and there is also a certificate from the bank, Annexure A-7, to the effect that no credits have been received from the respondent in the account of the petitioner from March 2014 till 20.11.2017. All the ingredients of clause (i) of sub-section (5) of Section 9 of the Code stand fulfilled as the application is found to be complete in all respects - Petition admitted. The matter be now posted on 22.02.2019 for passing of formal order of declaration of moratorium and appointment of Interim Resolution Professional.

Summary

Issues:
Initiation of insolvency resolution process under Section 9 of the Insolvency and Bankruptcy Code, 2016 based on operational debt.

Detailed Analysis:
The petition was filed by M/s Silvertoan Papers Limited, an operational creditor, seeking to initiate the insolvency resolution process against the respondent-corporate debtor under Section 9 of the Insolvency and Bankruptcy Code, 2016. The petitioner filed the application in Form 5 as per the prescribed rules. The respondent-corporate debtor is a company incorporated under the Companies Act, 1956, with registered office in Ludhiana, falling under the territorial jurisdiction of the Tribunal. The petitioner supplied goods worth &8377;26,23,564/- to the respondent, who failed to make complete payments, resulting in an outstanding amount of &8377;25,20,884/-, including the principal amount of &8377;7,30,961/-. A Civil Court decree was obtained for recovery of an amount of &8377;10,44,888/- with interest at 6% per annum.

The petitioner sent a demand notice under Section 8 of the Code to the respondent, along with copies of the decree, invoices, ledger account, and GRs. The notice was duly served on the respondent and its Directors. The respondent failed to respond to the notice, leading to the petitioner filing the current petition. The petitioner complied with the requirements of Section 9(3)(b) of the Code by affirming that no notice was given by the respondent regarding the dispute of unpaid operational debt.

The Tribunal carefully examined the records and found the application in Form 5 to be complete in all respects. The petitioner fulfilled the requirements of Section 9 of the Code, including the submission of a bank statement and a certificate from the bank confirming no credits received from the respondent in the petitioner's account. As an operational creditor, the petitioner was not obligated to propose the name of a Resolution Professional. With all the conditions of Section 9(5)(i) being met, the Tribunal admitted the petition under Section 9 of the Code, scheduling the next hearing for the formal order of declaration of moratorium and appointment of an Interim Resolution Professional on 22.02.2019.

In conclusion, the Tribunal admitted the petition for initiating the insolvency resolution process based on the operational debt owed by the respondent-corporate debtor to the petitioner. The decision was made after thorough examination of the application, compliance with legal requirements, and absence of response from the respondent to the demand notice.