2018 (7) TMI 73 - Tri - Insolvency and Bankruptcy

Corporate insolvency process - Held that - The respondent has stated that the respondent and the applicant/complainant entered into a financial transaction wherein the petitioner supplied ACSR Moose for a total consideration to the respondent and due to certain irregularities in the payment made by the respondent, the complainant initiated arbitration proceedings under MSMEDA. The respondent is accepting that the debt for goods supplied by the petitioner is due from them. This is also confirmed by the contents of paragraphs 1 to 4 of the reply in which it is stated that the respondent could not make payment to its suppliers since it did not receive payment of funds from its sister concern MIS Sravanthi Energy Private Limited. In view of the above discussion, it is held that the conditions provided for in section 9(5) (i) (a) to (d) are satisfied in the present case. As regards Section 9 (5) (e) of the Code it has already been discussed above that petitioner has proposed Shri Giridhari Lal Sharma as Interim Resolution Professional and his registration certificate, declaration and consent are at Annexure-1 I (colly) of the petition. We find that that in Form 2 submitted by Shri Giridhari Lal Sharma, he has certified that there are no disciplinary proceedings pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI) of ICAI. The condition of Section 9 (5) (e) of the Code is satisfied. In result thereof the conditions provided for by Section 9 (5) (i) of the Code are satisfied in the present case and the petition is admitted.

Issues Involved:
1. Territorial Jurisdiction
2. Debt Amount and Nature
3. Arbitration Award and Demand Notice
4. Respondent's Contentions
5. Applicability of Insolvency and Bankruptcy Code (IBC)
6. Execution of Award and Forum Shopping
7. Operational Debt Definition
8. Administrative vs. Judicial Order
9. Conditions for CIRP Admission
10. Moratorium Declaration

Issue-wise Detailed Analysis:

1. Territorial Jurisdiction:
The respondent company was incorporated on 26.03.2009, with its registered office in Gurgaon, Haryana. The petition lies within the territorial jurisdiction of the National Company Law Tribunal (NCLT), Chandigarh Bench.

2. Debt Amount and Nature:
The petition was filed in prescribed Form 5, stating a total debt amount of ?1,65,16,349.55, including a principal amount of ?37,68,496.35 as per the award dated 20.06.2015 and interest of ?1,27,47,853.20. The petitioner supplied LT Power and Control Cables and MV Power Cables to the respondent, who made only part payments, leaving a balance due.

3. Arbitration Award and Demand Notice:
The petitioner filed a case before the Medium and Small Enterprises Facilitation Council (MSEFC) under the Micro, Small and Medium Enterprises Development Act, 2016 (MSMEDA). The MSEFC awarded the petitioner the principal amount and interest. Despite the award, the respondent failed to pay, prompting the petitioner to send a Demand Notice on 25.01.2018, which was delivered on 31.01.2018.

4. Respondent's Contentions:
The respondent argued that it was unable to pay due to financial constraints caused by delayed gas supply and halted funding for a related project. It also contended that the petitioner was engaging in forum shopping by filing an execution petition in Gurgaon and the current application under IBC. The respondent further claimed the MSEFC award was an administrative order, not a judicial one.

5. Applicability of Insolvency and Bankruptcy Code (IBC):
The application was filed under Section 9 of the IBC, which allows operational creditors to initiate Corporate Insolvency Resolution Process (CIRP) if the corporate debtor fails to pay after a demand notice. The petition complied with Sections 9(1), 9(2), and 9(3) of the IBC, including the provision of necessary documents and affidavits.

6. Execution of Award and Forum Shopping:
The tribunal held that the MSMEDA and IBC operate in different spheres. The application under Section 9 of the IBC is for initiating CIRP, not merely for debt recovery. Therefore, the contention of forum shopping was rejected.

7. Operational Debt Definition:
The debt arose from the supply of goods, fitting the definition of "operational debt" under Section 5(21) of the IBC. The respondent's argument that the amount due under the MSEFC award does not constitute operational debt was dismissed.

8. Administrative vs. Judicial Order:
The tribunal found that the MSEFC award was passed after due process, with the respondent participating in the proceedings. The award is executable as a decree of the Civil Court, and the respondent's claim that it was an administrative order was not sustained.

9. Conditions for CIRP Admission:
The tribunal verified that all conditions under Section 9(5)(i) of the IBC were satisfied:
- The application was complete.
- There was no repayment of the unpaid operational debt.
- The demand notice was delivered.
- No notice of dispute was received.
- No disciplinary proceedings were pending against the proposed Interim Resolution Professional.

10. Moratorium Declaration:
The petition was admitted, and a moratorium was declared under Section 14 of the IBC, prohibiting:
- Institution or continuation of suits or proceedings against the corporate debtor.
- Transferring or disposing of any assets.
- Foreclosure or recovery of any security interest.
- Recovery of property occupied by the corporate debtor.

The moratorium will remain effective until the completion of the CIRP or until an order for liquidation is passed. The matter was posted for further orders on 04.06.2018.

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