2020 (5) TMI 173 - AT - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Period of limitation - case of appellant is that the impugned judgment dated February 18, 2019 and order dated February 22, 2019 have been passed by the Adjudicating Authority ex parte without giving adequate notice and without hearing the corporate debtor - existence of dispute or not - time limitation - HELD THAT - The first respondent raised Invoice No. 550, dated October 11, 2011 for ₹ 9,60,841 ; Invoice No. 785, dated December 21, 2011 for ₹ 8,43,795 and Invoice No. 885, dated January 20, 2011 for ₹ 4,50,024 (total ₹ 22,54,660). According to the first respondent out of the said amount a sum of ₹ 16,95,000 had been paid by the corporate debtor and the last amount paid in March, 2014. According to the first respondent with a view to recover the balance amount of ₹ 5,59,660 a Summary Suit No. 217 of 2014 was filed in the Court of Senior Civil Judge, Ahmedabad (Rural), A. Mirzapur, Ahmedabad-I wherein ex parte decree was passed against the corporate debtor on October 19, 2016 for ₹ 5,59,660 with simple interest at 8 per cent. per annum from the date of filing of the suit till the date of its realization - Thereafter, the amount having not paid the demand notice in Form 3 under section 8(1) was issued on February 15, 2017 followed by filing of petition under section 9. The facts as noted and detailed makes it clear that the claim of the first respondent is not barred by limitation. The case should not be remitted which will be otherwise futile exercise, as there is a debt payable by corporate debtor , who defaulted and the claim being not barred by limitation, the application has been rightly admitted - appeal dismissed.

Summary

Issues:
1. Ex parte admission of insolvency application without proper notice and hearing.
2. Barred by limitation under the Insolvency and Bankruptcy Code.
3. Existence of dispute and statutory rights of the corporate debtor.
4. Service of demand notice and dispute raised by the corporate debtor.
5. Question of limitation and appeal timelines.
6. Decrees passed against the corporate debtor in other suits.
7. Details of invoices and payments made by the corporate debtor.
8. Summary suit filed and subsequent demand notice under section 8(1).

Analysis:

Issue 1: Ex parte admission of insolvency application without proper notice and hearing
The appellant argued that the judgment and order were passed ex parte without adequate notice or hearing to the corporate debtor. The history of the application being withdrawn and refiled multiple times was highlighted, raising concerns about the lack of proper notification to the corporate debtor before the ex parte order was issued.

Issue 2: Barred by limitation under the Insolvency and Bankruptcy Code
The appellant contended that the application under the Insolvency and Bankruptcy Code was time-barred as the invoices dated back to 2008. This raised a significant legal issue regarding the timeline within which such claims can be made under the Code.

Issue 3: Existence of dispute and statutory rights of the corporate debtor
The appellant claimed that there was an existence of dispute and statutory rights of the corporate debtor, which were not considered before admitting the application. This highlighted the importance of addressing disputes and statutory rights before initiating insolvency proceedings.

Issue 4: Service of demand notice and dispute raised by the corporate debtor
The respondent argued that a demand notice was properly served on the corporate debtor, and no dispute was raised in response to it. This raised questions about the communication and response mechanisms between the parties involved in the insolvency proceedings.

Issue 5: Question of limitation and appeal timelines
The respondent raised concerns about the appeal timelines and the question of limitation in preferring the appeal. The timing of the orders and the issuance of certified copies were discussed to determine the validity of the appeal.

Issue 6: Decrees passed against the corporate debtor in other suits
Details of decrees passed against the corporate debtor in other suits were presented, indicating a history of legal actions against the debtor. This information was crucial in understanding the financial and legal background of the corporate debtor.

Issue 7: Details of invoices and payments made by the corporate debtor
Specific invoices and payments made by the corporate debtor were discussed, shedding light on the financial transactions between the parties. The amounts, dates, and payment history were crucial in determining the outstanding balance and the validity of the claim.

Issue 8: Summary suit filed and subsequent demand notice under section 8(1)
The summary suit filed and the demand notice issued under section 8(1) were detailed, providing a timeline of legal actions taken by the respondent. The legal procedures followed in recovering the outstanding amount were crucial in establishing the legitimacy of the claim.

In conclusion, the judgment dismissed the appeal, emphasizing that the claim was not barred by limitation, and there was a debt payable by the corporate debtor. The decision highlighted the importance of following legal procedures, addressing disputes, and ensuring proper notification and communication in insolvency proceedings.