2017 (12) TMI 1180 - Tri - Insolvency and Bankruptcy

Corporate insolvency procedure - proof of eligible debt - Held that - On perusal of the petition along with supported documents and pleadings of respondents and relevant law, we are convinced that the instant petition (application) is complete in all respects, as prescribed under section 9(2) of Code, and satisfied/fulfilled all the conditions prescribed under section 9(5) of the Code so as to admit the case, and to pass consequential order by invoking powers conferred on the Adjudicating Authority under sections 13,14,15 and 16 of Code. In view of the above facts and circumstances of the case, we are of the considered opinion that it is a fit case for admission.

Issues Involved:
1. Whether there is an "operational debt" exceeding ?1 Lakh.
2. Whether the debt is due and payable and has not been paid.
3. Whether there is an existence of a dispute or record of pending suit or arbitration proceedings before the receipt of the demand notice.

Issue-wise Detailed Analysis:

1. Whether there is an "operational debt" exceeding ?1 Lakh:
The tribunal examined the definitions under Sections 5(20) and 5(21) of the Insolvency and Bankruptcy Code, 2016 (IBC), which define "Operational Creditor" and "Operational Debt." The petitioner, Jaycon Infrastructure Limited, claimed an outstanding amount of ?2,28,32,742 from the respondent, Gayatri Projects Limited. The tribunal found that the petitioner had provided services under various sub-contracts, and the amount claimed exceeded ?1 Lakh. The tribunal confirmed the existence of an operational debt as defined under the IBC.

2. Whether the debt is due and payable and has not been paid:
The tribunal reviewed the evidence furnished by the petitioner, including the demand notice dated 20.02.2017, which was served on the respondent but was not replied to within the stipulated 10-day period. The petitioner also provided bank statements showing non-payment. The respondent's counter-arguments, including claims of set-offs and liquidated damages, were found to be unsupported by substantial evidence. The tribunal noted that the respondent's reply dated 16.03.2017 did not address the statutory demand notice properly and was considered an afterthought. The tribunal concluded that the debt was due and payable and had not been paid.

3. Whether there is an existence of a dispute or record of pending suit or arbitration proceedings before the receipt of the demand notice:
The tribunal examined whether there was any pre-existing dispute or pending arbitration. The respondent claimed that the petitioner had abandoned work and that there were liquidated damages and set-offs. However, the tribunal found these claims to be vague and unsupported by evidence. The respondent did not refer the matter to arbitration as per the agreement's clause, nor did they raise any dispute within the 10-day period after receiving the demand notice. The tribunal found no substantial evidence of a pre-existing dispute or pending arbitration proceedings.

Conclusion:
The tribunal concluded that the petitioner had successfully established the existence of an operational debt exceeding ?1 Lakh, which was due and payable but had not been paid. There was no evidence of a pre-existing dispute or pending arbitration proceedings. Consequently, the tribunal admitted the petition and initiated the Corporate Insolvency Resolution Process (CIRP) against the respondent, Gayatri Projects Limited. Dr. K. Lakshmi Narsimha was appointed as the Interim Resolution Professional (IRP), and a moratorium was declared, prohibiting various actions against the corporate debtor.

Order:
The tribunal admitted the company petition bearing CP(IB) No. 45/09/HDB/2017 and appointed Dr. K. Lakshmi Narsimha as the Interim Resolution Professional. A moratorium was declared, and directions were issued for the public announcement of the initiation of CIRP, the constitution of a Committee of Creditors, and cooperation from the personnel of Gayatri Projects Limited. The case was posted for further proceedings on 02.11.2017.

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