2020 (2) TMI 391 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - The application made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Application admitted - moratorium declared.

Summary

Issues:
- Initiation of Corporate Insolvency Resolution Process under section 9 of the Insolvency & Bankruptcy Code, 2016 (IBC) against a private company.
- Dispute regarding non-payment of dues by the Corporate Debtor.
- Invocation of Arbitration Clause by the Corporate Debtor.
- Validity of the claim made by the Operational Creditor.
- Determination of default and admission of the Petition for CIRP.
- Orders related to moratorium, appointment of Interim Resolution Professional (IRP), and management of the Corporate Debtor during CIRP.

Analysis:
1. Initiation of Corporate Insolvency Resolution Process: The Company Petition was filed by the Operational Creditor seeking to initiate Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor for non-payment of dues. The jurisdiction of the Tribunal was established as the Corporate Debtor was a private company incorporated under the Companies Act, 2013.

2. Dispute and Invocation of Arbitration Clause: The Corporate Debtor raised a defense claiming the goods supplied were faulty and of low quality, leading to losses incurred by the Corporate Debtor. The Corporate Debtor invoked an Arbitration Clause and notified the Operational Creditor of the dispute. However, the Tribunal noted that the dispute must exist prior to the issuance of the Demand Notice under the IBC.

3. Validity of the Claim: The Operational Creditor provided details of the invoices, part payments made by the Corporate Debtor, and dishonored cheques. The Tribunal examined the evidence presented, including invoices, bank statements, and the Demand Notice served by the Operational Creditor, and found the claim to be valid.

4. Determination of Default and Admission of Petition: The Tribunal analyzed the submissions of both parties and concluded that the Corporate Debtor failed to make the payment due, establishing a default as per the IBC. The Tribunal admitted the Petition and ordered the initiation of CIRP against the Corporate Debtor.

5. Orders and Moratorium: The Tribunal issued orders for a moratorium under section 14 of the IBC, appointed an Interim Resolution Professional (IRP), and directed the management of the Corporate Debtor to vest in the IRP during the CIRP period. Additionally, the Operational Creditor was directed to deposit a sum for expenses, and necessary communications were to be made to all parties involved.

This comprehensive analysis covers the legal judgment regarding the initiation of Corporate Insolvency Resolution Process, dispute resolution, validity of claims, determination of default, and the subsequent orders issued by the Tribunal for the management of the Corporate Debtor during the CIRP.