2020 (6) TMI 811 - Tri - Insolvency and Bankruptcy

Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - applicant reserves its right to claim damages and/or other remedies, interest, service charges and other amounts due and arising out of and/or in connection with the sales contract and/or the operational debt - pre-existing disputes between the parties or not - time limitation - HELD THAT - On perusal of records it is found that the applicant had issued letter dated 5th April, 2017 (page 131) to the corporate debtor seeking balance confirmation as on 31st March, 2017 for the audit purpose. The said letter bears signature with rubber stamp of the respondent acknowledging the debt - On perusal of the records it is also found that between the operational creditor and corporate debtor, email communication had taken place during the period from 10th January, 2015 to 10th October, 2018 (page 56-73 to the reply) regarding quality/quantity of the goods supplied and mode of transport. It is also found that during the period from 25.12.2014 to 08.12.2018 the respondent has raised seven debit notes on the applicant towards excess fines in vessels, production loss due to inferior quality of material and short material received. This adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of I B Code. That, service is complete and no dispute has been raised by the respondent at any point of time. That, Applicant is an Operational Creditor within the meaning of Section 5 sub section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force. This is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code - petition admitted - moratorium declared.

Summary

Issues Involved:
1. Maintainability of the petition under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Validity of authorization for filing the petition.
3. Compliance with procedural requirements under the Code and Rules.
4. Existence of operational debt and default.
5. Pre-existing disputes between the parties.
6. Declaration of moratorium and initiation of Corporate Insolvency Resolution Process (CIRP).

Issue-wise Detailed Analysis:

1. Maintainability of the petition under Section 9 of the Insolvency and Bankruptcy Code, 2016:
The petition was filed by M/s. Noble Resources International Pte. Ltd., a private limited company registered in Singapore, under Section 9 of the Insolvency and Bankruptcy Code, 2016, read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, as an operational creditor. The respondent, a private limited company registered in India, contested the maintainability, claiming the petition was based on misconceived facts and legal positions.

2. Validity of authorization for filing the petition:
The respondent argued that the petition was not signed and filed by the applicant or its authorized representative but by a law firm. However, the tribunal found that the applicant had submitted a certified true copy of the Board of Directors' resolution authorizing Mr. Girish Koulgi to sign and file necessary documents. Mr. Girish Koulgi, in turn, authorized M/s. Trilegal, Advocates, to act on behalf of the applicant. Therefore, the tribunal dismissed the respondent's objection regarding authorization.

3. Compliance with procedural requirements under the Code and Rules:
The respondent raised several procedural objections, including improper numbering of application parts, lack of affidavit under Section 9(3)(b) of the Code, defective demand notice, and absence of a bank statement. The tribunal found these objections baseless, noting that the applicant had submitted the required documents, including a bank statement from February 2014 to October 2016.

4. Existence of operational debt and default:
The applicant provided evidence of sales contracts and invoices for the supply of Metallurgical Coke, with payments due under D/A basis at 180 days. Despite partial payments by the corporate debtor, a significant amount remained unpaid. The tribunal confirmed the existence of operational debt exceeding Rs. 1.00 lac, which was due and payable but remained unpaid.

5. Pre-existing disputes between the parties:
The tribunal examined the communication between the parties, including emails and letters, and found that while there were discussions on quality and quantity issues, these did not constitute pre-existing disputes that would bar the initiation of CIRP. The tribunal referenced the Mobilox Innovative Private Limited vs Kirusa Software Private Limited case, emphasizing that the existence of a dispute must be genuine and substantial.

6. Declaration of moratorium and initiation of Corporate Insolvency Resolution Process (CIRP):
The tribunal, satisfied with the evidence of debt and default, admitted the petition and declared a moratorium under Section 13 of the Code. The moratorium prohibits the institution or continuation of suits, transferring of assets, and recovery actions against the corporate debtor. The tribunal appointed Mr. Jagdishchandra B. Mistri as the Interim Resolution Professional (IRP) and directed him to make a public announcement of the initiation of CIRP and call for submission of claims.

Conclusion:
The petition was admitted, and the moratorium was declared, prohibiting various actions against the corporate debtor. The tribunal directed the IRP to proceed with the CIRP, ensuring compliance with the Code and protecting the interests of all stakeholders. The registry was instructed to inform the Registrar of Companies about the initiation of CIRP to prevent any detrimental proceedings against the corporate debtor.