2019 (1) TMI 1772 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - dishonor of cheque - HELD THAT - A perusal of the documents relied upon by the Corporate Debtor however does not support the case of the Corporate Debtor. It is not denied that a memorandum of understanding dated 30th January, 2016 for purchasing material by the Corporate Debtor was executed, though it is stated to be executed under duress. Similarly, proforma invoices were issued upon the Corporate Debtor upon coercion to place purchase orders as well as acknowledge receipt of material - In view of the documents on record which fully support the case of the Operational Creditor, no credence can be given to oral submissions, whatever be the justification adopted by the Corporate Debtor. The issuance of cheques are in itself an acknowledgment of a liability which remains undischarged. The purchase orders, invoices, acknowledgment of receipt of material cannot be swept under the carpet on the mere submission that it was a sham transaction. Under such circumstances, the prayer made by the operational creditor merits consideration. Petition admitted - moratorium declared.

Summary

Issues:
1. Initiation of Corporate Insolvency Resolution Process under Section 9 of the Insolvency and Bankruptcy Code.
2. Disputed outstanding liability due to dishonored post-dated cheques.
3. Defense raised by the Corporate Debtor regarding the nature of transactions and the involvement of an Associate Company.
4. Examination of documents supporting the Operational Creditor's case against the Corporate Debtor.
5. Decision on the admission of the petition and appointment of an Interim Resolution Professional (IRP).

Analysis:

1. The petitioner, an Operational Creditor, sought the initiation of Corporate Insolvency Resolution Process under Section 9 of the Insolvency and Bankruptcy Code due to the respondent Corporate Debtor's failure to settle outstanding dues. The Operational Creditor supplied Iron and Steel goods, invoiced the Corporate Debtor, and received dishonored post-dated cheques in return, triggering the insolvency petition.

2. The Corporate Debtor defended by claiming a complex transaction involving an Associate Company, alleging that the material supplied was in exchange for a loan and security arrangement. However, the Corporate Debtor's argument of a sham transaction was refuted based on documented evidence showing the genuineness of the transactions and the liability owed by the Corporate Debtor.

3. Despite the Corporate Debtor's attempt to challenge the legitimacy of the transactions, the Tribunal found the Operational Creditor's case supported by concrete evidence, including purchase orders, invoices, and acknowledgment of material receipt. The Tribunal dismissed the Corporate Debtor's contention of a sham transaction and acknowledged the liability acknowledged through the issuance of cheques.

4. Consequently, the Tribunal admitted the petition, imposing a moratorium under Section 14 of the Code, halting legal proceedings against the Corporate Debtor and appointing an IRP to oversee the resolution process. The Operational Creditor was directed to deposit funds for the IRP's immediate expenses, emphasizing the seriousness of the insolvency proceedings and the need for proper management and accountability.

5. The judgment highlighted the importance of adhering to the insolvency process outlined in the Code, ensuring fair treatment of creditors and debtors while maintaining the integrity of corporate insolvency resolution. The case was scheduled for further consideration to progress the resolution process effectively.