2018 (12) TMI 967 - Tri - Insolvency and Bankruptcy

Corporate Insolvency Resolution Process (CIRP) - default in payment - Held that - This Company Petition is complete in all respects as mentioned u/s 8 and 9 of the Insolvency & Bankruptcy Code, Corporate Debtor defaulted in making payment of ₹30,51,543.30/-, as on 28.04.2017, after receiving of Demand Notice no dispute has been raised, henceforth it is hereby admitted.

Summary

Issues Involved:
1. Default in payment by Corporate Debtor.
2. Existence of a contractual relationship and admitted operational debt.
3. Dispute regarding the withholding of Bills of Lading by Operational Creditor.
4. Impact of the Operational Creditor’s actions on the Corporate Debtor’s cash flow and business operations.
5. Examination of the "existence of dispute" under the Insolvency and Bankruptcy Code, 2016.

Issue-wise Detailed Analysis:

1. Default in Payment by Corporate Debtor:
The Operational Creditor filed a Company Petition under Section 9 of the Insolvency & Bankruptcy Code, 2016, claiming that the Corporate Debtor defaulted in making a payment of ?30,51,543.30 as of 28.04.2017. The Operational Creditor, a private limited company, provided logistics services and acted as a Clearance and Forwarding Agent for the Corporate Debtor. Despite repeated requests and reminders, the Corporate Debtor failed to pay the amounts due under the invoices.

2. Existence of a Contractual Relationship and Admitted Operational Debt:
The Operational Creditor established that there was a contractual relationship with the Corporate Debtor, supported by a Demand Promissory Note dated 23.08.2016 and part payments made by the Corporate Debtor. The Corporate Debtor issued post-dated cheques and a Promissory Note, acknowledging the debt. However, these cheques were dishonored due to "payment stopped by Drawer" and "fund insufficient."

3. Dispute Regarding the Withholding of Bills of Lading by Operational Creditor:
The Corporate Debtor argued that the Operational Creditor withheld the Bills of Lading, preventing the goods from being shipped and causing financial losses. They claimed the Operational Creditor's actions hampered their cash flow and led to demurrage charges and other penalties. The Corporate Debtor also mentioned losses due to delays in delivery of documents, resulting in compensation payments to their customers.

4. Impact of the Operational Creditor’s Actions on the Corporate Debtor’s Cash Flow and Business Operations:
The Corporate Debtor asserted that the withholding of Bills of Lading by the Operational Creditor disrupted their business operations, leading to significant financial losses. They claimed that the Operational Creditor’s actions caused a loss of ?42,00,000 and that the Operational Creditor held original Title Deeds worth ?27,00,000 as security.

5. Examination of the "Existence of Dispute" under the Insolvency and Bankruptcy Code, 2016:
The Tribunal noted that the Corporate Debtor did not dispute the quality of goods or services provided by the Operational Creditor. The Tribunal referred to the judgment in Mobilox Innovations Private Limited v. Kirusa Software Private Limited, emphasizing that a dispute must be genuine and not a spurious defense. The Tribunal found that the Corporate Debtor’s arguments did not constitute a pre-existing dispute under the Insolvency and Bankruptcy Code, 2016.

Judgment:
The Tribunal concluded that the Company Petition was complete in all respects under Sections 8 and 9 of the Insolvency & Bankruptcy Code. The Corporate Debtor defaulted in making payment, and no dispute was raised after receiving the demand notice. Consequently, the Tribunal admitted the petition and ordered the initiation of the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The Tribunal also imposed a moratorium, prohibiting suits or proceedings against the Corporate Debtor and appointed an Interim Resolution Professional to carry out the CIRP functions.

The order of moratorium shall have effect from 20.11.2018 until the completion of the CIRP or until the Tribunal approves a resolution plan or passes an order for liquidation of the Corporate Debtor. The public announcement of the CIRP was to be made immediately, and the Registry was directed to communicate the order to all concerned parties. The case was listed for a progress report on 10th Dec 2018.