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2020 (6) TMI 721 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - rebuttal of presumption or not - HELD THAT - The Corporate Debtor has issued a cheque dated 10.11.2018 for a sum of ₹12,46,524/-, which is the principal sum claimed in the present petition. The cheque return memo from the Operational Creditor's bankers placed at Exhibit G at p.30 of the Petition reveals that the reason for dishonour of the cheque is Payment stopped by Drawer. Stoppage of cheque lawfully drawn attracts penal consequences in terms of section 138 read with section 139 of the Negotiable Instruments Act, 1881, with a lawful presumption that the cheque has been given in discharge of a lawful debt. The onus of rebutting the presumption is on the Corporate Debtor, which has not been discharged. From the material available on record, it is seen that the Demand Notice has been served on the Corporate Debtor on 10.06.2019 - There was no reply to the Demand Notice. The Operational Creditor has placed the necessary affidavit under section 9(3)(b) also on record. The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC at the relevant time. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor - Application admitted - moratorium declared.
Issues:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) under section 9 of the Insolvency & Bankruptcy Code, 2016. 2. Default in payment by the Corporate Debtor. 3. Non-representation by the Corporate Debtor. 4. Jurisdiction of the Bench. 5. Failure to provide Central Sales Tax Form 'C'. 6. Dishonored cheque and legal implications. 7. Admission of the Petition and initiation of CIRP. 8. Moratorium under section 14 of the IBC. 9. Appointment of Interim Resolution Professional (IRP). 10. Management during the CIRP period. 11. Deposit by Operational Creditor for expenses. 12. Communication and compliance directives. Detailed Analysis: 1. Initiation of CIRP: The Company Petition was filed under section 9 of the IBC by the Operational Creditor seeking to initiate CIRP against the Corporate Debtor for defaulting on a payment of a substantial amount. 2. Default in Payment: The Operational Creditor claimed that the Corporate Debtor failed to make a payment of a principal sum and interest, leading to the initiation of the CIRP process. 3. Non-representation by Corporate Debtor: The Corporate Debtor did not appear or provide any representation in response to the petition, indicating a lack of engagement with the legal proceedings. 4. Jurisdiction: The Bench established its jurisdiction to handle the petition based on the incorporation details and registered office location of the Corporate Debtor. 5. Failure to provide Central Sales Tax Form 'C': The Corporate Debtor was found to be in default for not fulfilling its obligation to provide Form 'C', which could result in additional tax liability. 6. Dishonored Cheque and Legal Implications: A cheque issued by the Corporate Debtor was dishonored, invoking the legal consequences under the Negotiable Instruments Act, with a presumption that the cheque was given in discharge of a lawful debt. 7. Admission of the Petition: The Adjudicating Authority admitted the petition as the default by the Corporate Debtor was established, and there was no response or valid reason to deny the admission. 8. Moratorium under Section 14 of the IBC: A moratorium was imposed on various actions against the Corporate Debtor, as per the provisions of the IBC, to facilitate the resolution process. 9. Appointment of IRP: An Interim Resolution Professional was appointed by the Adjudicating Authority to manage the affairs of the Corporate Debtor during the CIRP period. 10. Management during CIRP: The management of the Corporate Debtor was vested in the IRP, who was tasked with collecting information and submitting periodical reports on the progress of the CIRP. 11. Deposit by Operational Creditor: The Operational Creditor was directed to deposit a sum to meet expenses related to issuing public notices and inviting claims, subject to approval by the Committee of Creditors. 12. Communication and Compliance Directives: Various communication and compliance directives were issued to ensure the proper dissemination of the order and updating of relevant records with the Registrar of Companies. This detailed analysis covers the key issues and outcomes of the judgment delivered by the National Company Law Tribunal, Mumbai Bench-IV.
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