2020 (12) TMI 1339 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT - Considering the format and particulars required to be given in the format if the Application is complete it is required to be admitted unless the Corporate Debtor shows Pre-existing dispute. The Hon ble Appellate Tribunal further held that the dispute raised in this case was that there was no dealing between the Corporate Debtor and the Operational Creditor that there was no agreement. It was however mentioned in the reply that it there was a dispute with the branch office and that they wanted to verify the transaction. The Bank Statement of the Operational Creditor was also seen and it was found that various payments of more than Rs.3 Crores were stated to have been made from the outstanding dues and for a small amount of Rs. 21, 07, 916/- the Operational Creditor was required to move to the Adjudicating Authority. The application filed by the Operational Creditor under Section 9 of the Insolvency Bankruptcy Code 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor M/s Ambient Computronics Pvt.Ltd. is hereby admitted - moratorium declared.

Summary

Issues:
1. Dismissal of application under Section 9 of the Insolvency & Bankruptcy Code, 2016 by the Adjudicating Authority.
2. Appeal filed by the Operational Creditor against the dismissal.
3. Analysis of the judgment by the Hon'ble National Company Law Appellate Tribunal, New Delhi.
4. Decision and orders passed by the National Company Law Tribunal, Kolkata post-appeal.

Issue 1: The Adjudicating Authority dismissed the application under Section 9 of the Insolvency & Bankruptcy Code, 2016, citing lack of evidence of goods delivery and internal management disputes between the Corporate Debtor's directors. The Authority found no liability on the Corporate Debtor for the amount claimed by the Operational Creditor. The Corporate Debtor alleged collusion to create a market monopoly, leading to the dismissal of the application without costs.

Issue 2: The Operational Creditor appealed the dismissal, arguing that the Adjudicating Authority erred in its analysis of documents and lack of proof of goods delivery. The Hon'ble National Company Law Appellate Tribunal, New Delhi, found discrepancies in the Adjudicating Authority's observations regarding the delivery address and non-production of invoices proving goods delivery. The Tribunal directed that the application be admitted unless the Corporate Debtor settles with the Operational Creditor.

Issue 3: The Hon'ble Appellate Tribunal highlighted the Corporate Debtor's disputes with its directors and the Operational Creditor's evidence of payments from the Corporate Debtor. The Tribunal emphasized the need to prove the amount claimed due upon goods delivery, disregarding internal disputes as grounds for dismissing the application. The Tribunal set aside the previous order and remitted the matter back to the Adjudicating Authority for admission.

Issue 4: Following the directions of the Hon'ble Appellate Tribunal, the National Company Law Tribunal, Kolkata, admitted the petition under Section 9 of the IBC, declaring a moratorium and public announcement. An Interim Resolution Professional was appointed, and the matter was listed for progress report filing. The orders included directions for depositing funds, communication of the order to relevant parties, and timelines for resolution plan identification and creditor meetings.