2019 (12) TMI 1351 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT - It is found that as per the original agreement dated 30th August 2019 entered into between and operational creditor and the corporate debtor the first instalment of 9.00 lacs were to be paid within seven days of signing the settlement agreement dated 30.08.2019 and the last instalment of 2, 41, 974/- on 29.02.2020. On perusal of the original agreement dated 30.08.2019 and the schedule given at page No. 21 of the reply shows different due dates of instalment and it is not the replica of agreement dated 30.08.2019 which is agreed between the parties - On perusal of the agreement dated 30.08.2019 it is clear that there is/are default in payment and as such the corporate debtor entered into agreement dated 30.08.2019 with covenant to pay as per the schedule mentioned in the agreement but that too corporate debtor has defaulted and has not paid a single instalment. On perusal of the records it is also found that the respondent has not raised any dispute regarding the debt payable to the operational creditor. Thus the petition is complete in all respect. Petition admitted - moratorium declared.

Summary

Issues:
Petition under Section 9 of The Insolvency and Bankruptcy Code, 2016 filed by operational creditor against corporate debtor for outstanding payment of goods supplied.

Analysis:
1. The petitioner, an operational creditor, filed a petition under Section 9 of The Insolvency and Bankruptcy Code, 2016, claiming an outstanding amount of &8377; 30,74,768/- against the respondent corporate debtor for goods supplied.
2. The respondent corporate debtor, in its reply, cited difficulties due to search and seizure proceedings, requesting an extension for payment, which was agreed upon in a subsequent agreement dated 30.08.2019.
3. The adjudicating authority found discrepancies in the payment schedule provided by the respondent, indicating defaults in payment as per the original agreement.
4. The respondent did not raise any dispute regarding the debt payable to the operational creditor, and acknowledgment of the debt was made in a letter dated 02.07.2019.
5. The petitioner submitted documentary evidence supporting the claim, including affidavits, demand notices, and bank statements, establishing the existence of debt and default in payment by the respondent.
6. Referring to legal precedents, the adjudicating authority emphasized the need to determine operational debt exceeding &8377; 1.00 lac, documentary evidence of debt due and payable, and absence of dispute between the parties.
7. Based on the material on record, the adjudicating authority concluded that the operational debt was due, requirements of the Insolvency & Bankruptcy Code were met, and the respondent admitted the dues without raising any dispute.
8. The adjudicating authority ordered the initiation of the Insolvency Resolution Process, declaring a moratorium under Section 13 of the Code and appointing an Interim Resolution Professional.
9. The moratorium prohibited suits against the corporate debtor, asset transfers, recovery actions, and ensured continuity of essential services to the debtor during the resolution process.
10. The order of moratorium was to remain in effect until the completion of the resolution process or approval of a resolution plan, with directions to communicate the order to relevant parties and regulators to prevent adverse actions against the respondent company.

This detailed analysis of the judgment highlights the key legal aspects, findings, and directives issued by the adjudicating authority in the case of an operational creditor petition against a corporate debtor for non-payment of goods supplied.