2019 (5) TMI 1295 - Tri - Insolvency and Bankruptcy

Initiation of Corporate Insolvency Resolution Process - Service of Demand Notice - sub-sections (1) and (2) of Section 9 of the Insolvency Bankruptcy Code, 2016 - HELD THAT - The petitioner has filed the copies of the invoices demanding payment from the respondent in respect of the delivery of goods supplied by the petitioner, which were delivered to the respondentcorporate debtor, as already observed, thereby complying with Section (3) of Section 9 of the Code. Mr. Prashant Pathak, Managing Director duly authorised by the petitioner has filed the affidavit dated 03. 08. 2018 (Annexure 13) stating that the corporate debtor has neither disputed the existence of or the amount of unpaid operational debt nor provided the details of the pendency of the suit or arbitration proceedings in relation to any such dispute filed. It is further stated that there is no notice given by the corporate debtor in relation to a dispute of unpaid operational debt. The petitioner has satisfied the requirement of clause (b) of Section 9 (3) of the Code. The petitioner has also filed a copy of the bank statement from 26. 06. 2018 onwards. The petitioner, therefore, has complied with the requirement of Section (c) of Section 9 (3) of the Code. The petitioner being the operational creditor is not obliged to propose the name of the Resolution Professional to be appointed as the Interim Resolution Professional by this Tribunal. Therefore, the Tribunal has to proceed in terms of clause (a) of Section 16 (3) of the Code in case the petition is admitted - all the requirement of Clause (i) of Section 9 (5) of the Code stand fulfilled. The petition is admitted under Section 9 of the Code.

Summary

Issues:
Initiating insolvency resolution process under the Insolvency & Bankruptcy Code against a corporate debtor.

Analysis:
The petitioner, a company incorporated under the Companies Act, filed a petition under Section 9 of the Insolvency & Bankruptcy Code to initiate insolvency resolution against the respondent-corporate debtor, Alchemist Hospitals (Gurgaon) Private Limited. The petitioner's Managing Director was authorized to file the petition based on a resolution passed by the petitioner company. The respondent-corporate debtor was incorporated with a registered office in Panchkula, falling within the territorial jurisdiction of the Tribunal.

The petitioner, an operational creditor engaged in selling medicines and supplies, provided goods to the respondent-corporate debtor from December 2014 to July 2016. Despite part payments made by the respondent, there was an outstanding balance of ?6,74,310.36 as per the petitioner's records. The petitioner sent a demand notice, which was validly delivered to the respondent's registered office address and email.

The Tribunal, after considering the facts and submissions, found that the petitioner had fulfilled the requirements of Section 9 of the Code. The petitioner submitted copies of invoices, an affidavit stating no dispute from the corporate debtor, a certificate from the financial institution confirming non-payment, and bank statements. The petitioner was held entitled to interest at a rate of 10% per annum on the outstanding amount.

As the operational creditor, the petitioner was not required to propose the Resolution Professional, and the Tribunal admitted the petition under Section 9 of the Code. The matter was scheduled for further proceedings to declare moratorium and appoint the Interim Resolution Professional. The Tribunal directed the communication of the order to both parties for compliance.