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2019 (11) TMI 1485 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues -Operational Debt - existence of debt and dispute or not - time limitation - Service of demand notice - HELD THAT - The demand notice dated 30.03.2019 was sent at the address as per the master data at Page No. 63 of the petition in which the registered office is shown as Plot No. 672, Pace City-II, Sector 37, Gurgaon, Haryana-122001. The demand notice was duly acknowledged by Mr. R.C. Kajaria. Therefore, the statutory demand notice was duly delivered upon the corporate debtor. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - It is deposed by the operational creditor that no reply or notice of dispute has been received from the corporate debtor to the demand notice dated 30.03.2019 issued by the operational creditor. Thus, there is no dispute as to the liability between the corporate debtor and the operational creditor. Debt and default or not - HELD THAT - It has been proved beyond doubt that the corporate debtor has failed to make payments of the aforesaid amount due as mentioned in the statutory notices till date. It is also observed that the conditions under Section 9 of the Code stand satisfied. The applicant-operational creditor states that from the abovementioned fact it is clear that the liability of the respondent-corporate debtor is undisputed. The above-iterated chronology of developments makes it abundantly clear that the corporate debtor by refraining from clearing their dues towards the operational creditor is deliberately not adhering to the terms and conditions contained in the invoices. Accordingly, the petitioner proved the debt and the default, which is more than ₹ 1 lac by the respondent-corporate debtor. Petition admitted - moratorium declared.
Issues Involved:
1. Proper service of demand notice. 2. Existence of operational debt and its dispute. 3. Compliance with Section 9(5)(i) of the Insolvency and Bankruptcy Code, 2016. 4. Appointment of Interim Resolution Professional (IRP). Detailed Analysis: 1. Proper Service of Demand Notice: The tribunal examined whether the demand notice in Form No. 3 dated 30.03.2019 was properly served. The demand notice was sent to the corporate debtor's registered address as per the master data and was duly acknowledged by Mr. R.C. Kajaria. Thus, the statutory demand notice was properly delivered upon the corporate debtor. 2. Existence of Operational Debt and Its Dispute: The operational creditor supplied goods to the corporate debtor and raised invoices, which were not paid. A demand notice was issued, and the corporate debtor acknowledged the debt but failed to pay. The corporate debtor did not dispute the operational debt, as no reply or notice of dispute was received from them. The tribunal found no dispute regarding the liability between the parties. 3. Compliance with Section 9(5)(i) of the Insolvency and Bankruptcy Code, 2016: The tribunal verified the application under Section 9(5)(i) of the Code, which mandates the following: - The application must be complete. - There should be no payment of the unpaid operational debt. - The invoice or notice for payment must have been delivered. - No notice of dispute should have been received. - No disciplinary proceedings should be pending against any proposed resolution professional. The tribunal found the application complete, with an unpaid operational debt of ?4,88,607. The demand notice was properly delivered, and no dispute was raised by the corporate debtor. The corporate debtor admitted its liability and cited financial distress for non-payment. The tribunal concluded that the conditions under Section 9 of the Code were satisfied. 4. Appointment of Interim Resolution Professional (IRP): The operational creditor did not propose any IRP. As per Section 16(3)(a) of the Code, the tribunal referred the matter to the Board for recommending an insolvency professional. The tribunal received a panel of resolution professionals and appointed Mr. Naresh Kumar Goel as the IRP. His credentials were verified, and no adverse findings were reported. Conclusion: The tribunal admitted the petition for initiating the Corporate Insolvency Resolution Process (CIRP) against the corporate debtor, BR Knitwears Private Limited. It declared a moratorium as per Section 14 of the Code, prohibiting suits, transferring assets, and other specified actions. The tribunal directed the IRP to manage the corporate debtor's affairs, make a public announcement, and constitute a Committee of Creditors. The IRP was instructed to submit regular progress reports to the tribunal. Copies of the order were communicated to the parties and the IRP.
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