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2019 (11) TMI 1486 - 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 - HELD THAT - There is an unpaid operational debt amounting to ₹ 2,43,43,067/- (inclusive of ₹ 1,86,42,633/-plus ₹ 57,00,434/- @ 12% annually for the period from 31.05.2016 to 28.02.2019). Copy of Ledger Account of the corporate debtor in the books of the financial creditor for the period of 01.04.2014 to 31.03.2019 (Annexure-VI of the petition) has been filed. The copy of invoices has been filed at Annexure-IV of the petition. Moreover, demand notice in Form No. 3 4 were also sent on 15.03.2019 stating that the amount due from the corporate debtor to the operational creditor is ₹ 2,43,43,067/-. As a statutory requirement under Section 9(3)(b) of the Code, an affidavit dated 24.04.2019 has been placed by the operational creditor stating the corporate debtor has not given any notice relating to the dispute of unpaid operational debt in terms of the Code. We have held above that the demand notices in form No. 3 4 were properly delivered by the Operational Creditor and no pre-existing dispute is proved. It has been shown that the corporate debtor has failed to make payment 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 it is clear that the liability of the respondent-corporate debtor is undisputed. Accordingly, the petitioner proved the debt and the default, which is more than ₹ 1 lac by the respondent-corporate debtor. Application admitted - moratorium declared.
Issues Involved:
1. Proper service of demand notice. 2. Dispute regarding the operational debt. 3. Compliance with Section 9(5)(i) of the Insolvency and Bankruptcy Code. 4. Appointment of Interim Resolution Professional (IRP). 5. Declaration of moratorium. Issue-wise Detailed Analysis: 1. Proper Service of Demand Notice: The Tribunal examined whether the demand notice in Form No. 3 & 4 dated 14.03.2019 was properly served. The notices were sent to the registered office of the corporate debtor as per the master data, and postal receipts confirming delivery were provided. Thus, the Tribunal found that the demand notices were properly served. 2. Dispute Regarding the Operational Debt: The Tribunal considered whether the operational debt was disputed by the corporate debtor. The corporate debtor acknowledged its liability but disputed the amount claimed by the operational creditor. The corporate debtor cited financial losses as the reason for its inability to clear the outstanding debt. The Tribunal noted that there was no dispute as to the liability itself, only the amount, and no notice of dispute was received by the operational creditor. 3. Compliance with Section 9(5)(i) of the Insolvency and Bankruptcy Code: The Tribunal reviewed the provisions of Section 9(5)(i) of the Code, which mandates the admission of the application if certain conditions are met, including completeness of the application, non-payment of the debt, proper delivery of the invoice or notice, absence of dispute notice, and no disciplinary proceedings against the proposed IRP. The Tribunal found that all these conditions were satisfied. The application was complete, the debt remained unpaid, the demand notice was properly delivered, no pre-existing dispute was proven, and there were no disciplinary proceedings against the proposed IRP. 4. Appointment of Interim Resolution Professional (IRP): The Tribunal appointed Mrs. Mandeep Gujral as the Interim Resolution Professional. Her credentials were verified, and no adverse findings were reported. The Tribunal directed that her term of appointment would be in accordance with Section 16(5) of the Code. The powers of the Board of Directors of the corporate debtor were suspended, and the management of affairs was vested in the IRP. The IRP was instructed to act in accordance with the Code, prepare an inventory of assets, make a public announcement, and constitute a Committee of Creditors. 5. Declaration of Moratorium: The Tribunal declared a moratorium in terms of Section 14(1) of the Code, which included the suspension of suits or proceedings against the corporate debtor, prohibition on transferring or disposing of assets, and halting actions to foreclose or recover security interests. The moratorium would remain effective until the completion of the Corporate Insolvency Resolution Process (CIRP) or until an order for liquidation was passed. The Tribunal directed the IRP to make a public announcement within three days, manage the corporate debtor's affairs as a going concern, and file regular progress reports. Copies of the order were to be communicated to the parties and the IRP. Conclusion: The Tribunal admitted the petition for initiating the CIRP against the corporate debtor, declared a moratorium, and appointed an IRP, thereby setting the process in motion for resolving the insolvency of the corporate debtor.
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