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2019 (4) TMI 940 - Tri - Insolvency and BankruptcyInitiation of Corporate Insolvency Resolution Process - Default of the Respondent Company in clearing the debt - Section 9 of the Insolvency and Bankruptcy Code, 2016 - existence of debt and default or not? - HELD THAT - It is significant to note that despite opportunities given to the parties, they could not reconcile the accounts. The Applicant vide his additional affidavit has furnished the details of the payment made by the JV and it is shown that the payment has been accounted for the purchase orders placed by the JV itself. The Respondent Company has not provided conclusive proof for settlement of the dues raised by the Applicant company, despite opportunities for reconciliation of accounts, it is held that the amount claimed by the Applicant is due by the Respondent to the Applicant. Whether the pendency of winding up petition in the Hon'ble High Court is a bar to initiate CIRP of the Respondent Company? - HELD THAT - In the instant case the Hon'ble High Court has kept the appointment of an Official Liquidator in abeyance. Hence, we are of the view that there is no bar to initiation of CIRP of the Respondent Company. The application stands admitted in terms of Section 9(5) of IBC, 2016 and the moratorium shall come in to effect as of this date.
Issues:
1. Alleged default in payment for supplies of Ready-Mix Concrete under CIRP u/s. 9 of the Insolvency and Bankruptcy Code, 2016. 2. Whether winding up petition in High Court is a bar to initiate CIRP. Issue 1: Alleged Default in Payment: The Applicant, M/s. Nuvoco Vistas Corporation Limited, filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 against the Respondent Company, Maxout Infrastructures Private Limited, for non-payment of a debt of ?60,54,582/- along with interest at 24% p.a. for supplies of Ready-Mix Concrete. The Respondent made partial payments but a significant amount remained unpaid, leading to the application. The Respondent alleged that the Applicant did not account for payments made through its bank account and a joint venture company, disputing the total amount owed. Despite attempts at reconciliation, the Respondent failed to provide conclusive proof of settling the dues, resulting in the Tribunal ruling in favor of the Applicant. Issue 2: Winding Up Petition Bar to CIRP: The Respondent argued that the pendency of a winding up petition in the High Court should bar the initiation of Corporate Insolvency Resolution Process (CIRP). However, the Tribunal referenced previous judgments and held that as long as no Official Liquidator had been appointed and no winding up order passed, the pendency of a winding up petition did not prevent the initiation of CIRP. Since the High Court had kept the appointment of an Official Liquidator in abeyance, the Tribunal found no legal impediment to commencing CIRP against the Respondent. In light of the above, the Tribunal admitted the application under Section 9(5) of the IBC, 2016. An Interim Resolution Professional was appointed, and a moratorium was imposed on certain actions against the Respondent. The Applicant was directed to pay a sum to the Interim Resolution Professional, and the moratorium would remain in effect until the completion of the corporate insolvency resolution process. The order was communicated to the parties and relevant authorities for further action and compliance.
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