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2019 (4) TMI 1089 - Tri - Insolvency and BankruptcyMaintainability of petition - initiation of Corporate Insolvency Resolution Process - grant of moratorium - appointment of Interim Resolution Professional - Section 9 of Insolvency and Bankruptcy Code, 2016, r/w Rule 6 of Insolvency Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 - Corporate debtor - contention of PCS that operational creditor issued demand notice to the corporate debtor in FORM-3 FORM-4 enclosing invoices which are shown as Annexure-B at Pg.No.10-25 of the application. PCS contended that there is no reply for the said demand notice. HELD THAT - The operational creditor rendered services to the corporate debtor and raised invoices. There was no reply to the demand notice. The amount claimed by operational creditor is an operational debt and corporate debtor committed default. Nowhere corporate debtor raised any dispute. The documents filed by operational creditor would establish that corporate debtor rendered services to the corporate debtor and operational creditor raised invoices which was committed default. Therefore there are grounds to admit the petition. The Operational Creditor proposes the name of Ms. Shri Sunit Jagdishchandra Shah, as Interim Resolution Professional. The proposed IRP has given written consent in Form-2 vide memo. He has also certified there are no disciplinary proceedings pending against him either with the Board or ICSI. He has enclosed certificate of Registration - The Adjudicating Authority is satisfied that the Corporate Debtor failed to discharge its liability mentioned in the Petition filed by the Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC), resulting occurrence of default for an amount of ₹ 74,17,215/-. The Adjudicating Authority admits this Petition under Section 9 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code - petition admitted.
Issues Involved:
1. Default in repayment of operational debt. 2. Validity and enforceability of the Memorandum of Understanding (MoU). 3. Evidence of services rendered by the Operational Creditor. 4. Dispute regarding the debt and default. 5. Compliance with procedural requirements under the Insolvency and Bankruptcy Code (IBC), 2016. Detailed Analysis: 1. Default in Repayment of Operational Debt: The petition was filed by the Operational Creditor, M/s. Artha Energy Resources LLP, against the Corporate Debtor, M/s. Photon Energy Systems Limited, for defaulting on a sum of ?74,17,215/-. The Operational Creditor claimed that the default occurred on 15.01.2016, 16.04.2016, and 11.05.2016, as evidenced by three invoices. Despite several reminders and emails sent from 09.01.2016 to 29.06.2017, the Corporate Debtor did not make the payment. 2. Validity and Enforceability of the Memorandum of Understanding (MoU): Both parties entered into an MoU dated 28th July 2014, where the Operational Creditor was to act as a sales channel partner, providing leads or investors for grid-connected PV projects. The Operational Creditor asserted that it rendered services in accordance with the MoU, and the Corporate Debtor did not dispute the quality of services provided during the project tenure. 3. Evidence of Services Rendered by the Operational Creditor: The Operational Creditor provided evidence of services rendered through emails and other correspondence. It introduced Nereus Capital to the Corporate Debtor, which agreed to invest in the project. The Corporate Debtor did not raise any disputes regarding the services rendered during the project tenure. The invoices and demand notices were attached to the petition, and no reply was received from the Corporate Debtor. 4. Dispute Regarding the Debt and Default: The Corporate Debtor contested the petition, arguing that there was no debt due and that the Operational Creditor failed to provide specific agreements or evidence of services rendered. The Corporate Debtor also claimed that the invoices were raised in the name of "Photon Solar," which is not a party to the case. However, the Operational Creditor clarified that "Photon Solar" is a brand name and logo of the Corporate Debtor, registered as Photon Energy Systems Limited. The tribunal found that the Corporate Debtor did not provide substantial evidence to dispute the debt and default. 5. Compliance with Procedural Requirements under IBC, 2016: The Operational Creditor complied with the procedural requirements by filing Form-5 under Rule 6 of the I&B Code (AAA) Rules, 2016, and serving demand notices in Form-3 and Form-4. The proposed Interim Resolution Professional (IRP), Shri Sunit Jagdishchandra Shah, provided written consent and was found to have no pending disciplinary proceedings. Judgment: The Adjudicating Authority was satisfied that the Corporate Debtor failed to discharge its liability, resulting in a default of ?74,17,215/-. The petition was admitted under Section 9 of the IBC, 2016. A moratorium was declared, prohibiting the institution or continuation of suits against the Corporate Debtor, transferring or disposing of assets, and recovering property during the moratorium period. The tribunal appointed Shri Sunit Jagdishchandra Shah as the Interim Resolution Professional to carry out the functions under the Insolvency & Bankruptcy Code. Accordingly, the petition was admitted, and the Corporate Insolvency Resolution Process (CIRP) was initiated against the Corporate Debtor.
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