2019 (2) TMI 1112 - Tri - Insolvency and Bankruptcy

Corporate Insolvency process - Delhi Tribunal jurisdiction to entertain and try this application - Outstanding debt - debt barred by limitation - Held that - The Operational Creditor has issued a demand notice dated 13.03.2018 under section 8 of the Insolvency and Bankruptcy Code, 2016 as per Form 3 as prescribed under in the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to the Corporate Debtor to pay the unpaid operational debt in full within 10 (ten) days of receipt of the notice. Service affidavit is filed to corporate debtor vide dated 17.08.2018 through both the modes, Speed Post which was duly delivered on March 15, 2018 and also dispatched through email at its registered email id vide email dated March 14, 2018. The Corporate Debtor has neither submitted a reply to the aforesaid notice till date nor made any payment towards the outstanding dues. The applicant filed present Application under section 9 of IBC, 2016 and served the copy of this application which is duly received by the Corporate Debtor as per the affidavit of service filed by the applicant. The Applicant has filed an affidavit affirming that in respect of the amount claimed or any part thereof, the Applicant has not received nor had any person, on its behalf had received in any manner the amount due to them nor has received any notice of dispute raised by the corporate debtor under section 9(3)(b) of the IBC, 2016. The applicant has filed the bank certificate of ICICI Bank dated 20.03.2018 as required u/s. 9(3)(c) of I&B Code. The Applicant further states that in spite of several opportunities given none appeared on behalf of the corporate debtor nor any reply is filed and the matter was listed to be heard exparte on 29.11.2018. The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. The default occurred from 24.12.2017, hence the debt is not time barred and the application is filed within the period of limitation. The present application is complete and the Applicant is entitled to claim its dues, which remain uncontroverted by the Corporate Debtor, establishing the default in payment of the operational debt beyond doubt. In the light of above facts and records, the present application is admitted.

Summary

Issues: Application under section 9 of Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency process against a private limited company for outstanding dues.

Analysis:
1. The application was filed under section 9 of the Insolvency and Bankruptcy Code, 2016, on behalf of the applicant, seeking to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, a private limited company. The Applicant, a proprietorship concern, had authorized a representative to act on their behalf for this purpose.

2. The Applicant detailed the business transactions between the parties, stating that the Corporate Debtor had outstanding dues amounting to ?808,934 along with interest, which remained unpaid despite multiple notices and demands. The Corporate Debtor had made partial payments but still owed a significant balance to the Operational Creditor.

3. The Operational Creditor had issued recovery and demand notices to the Corporate Debtor, following the prescribed procedures under the IBC, 2016. The Corporate Debtor neither responded to the notices nor made any further payments towards the outstanding dues, leading to the filing of the present application.

4. The Tribunal found that the application was complete, the debt was not time-barred, and the Applicant had fulfilled all necessary requirements under the IBC, 2016. The Corporate Debtor failed to contest the claims, establishing a default in payment of operational debt beyond doubt.

5. Consequently, the Tribunal admitted the application under section 9 of the IBC, 2016. An Interim Resolution Professional (IRP) was appointed, and a moratorium was imposed on the Corporate Debtor, prohibiting various actions against it, as per the provisions of the IBC, 2016.

6. The moratorium would remain in effect until the completion of the corporate insolvency resolution process, subject to approval of a resolution plan or liquidation order by the Adjudicating Authority. The order was communicated to all relevant parties and authorities for further action and compliance.