2020 (5) TMI 268 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT - It is apparent from the records that the payment of claim amount has been defaulted by the Corporate Debtor and despite the issuance of section 8 notice under the Insolvency Bankruptcy Code, 2016 by the Applicant and the receipt of the same by the Corporate Debtor, the payment was not made. The claim stands established and prima facie the presumption is raised that there is default in payment of the amount due to the Applicant and no dispute is in existence - Hence, this Tribunal is inclined to initiate the proceedings namely, Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor as envisaged under the Provisions of the IBC, 2016 and this application is admitted. Application admitted - Moratorium declared.

Summary

Issues:
- Application filed under section 9 of the Insolvency & Bankruptcy Code, 2016 (IBC, 2016) for initiation of Corporate Insolvency Resolution Process against a Private Limited Company.
- Default in payment by the Corporate Debtor for supplied silver utensils.
- Dishonoured cheques and legal actions taken under section 138 of Negotiable Instruments Act, 1881.
- Issuance of notice under section 8 of the Insolvency & Bankruptcy Code, 2016.
- Non-appearance and ex-parte proceedings before the Tribunal.
- Jurisdiction of the Tribunal, Law of Limitation, and establishment of default in payment.
- Admission of the application, appointment of Interim Resolution Professional, and consequences of initiating Corporate Insolvency Resolution Process.

Analysis:
1. The application was filed under section 9 of the IBC, 2016 by an Operational Creditor against a Private Limited Company for non-payment of dues related to supplied silver utensils. The Applicant provided evidence of invoices, agreements, and dishonoured cheques, leading to the initiation of the Corporate Insolvency Resolution Process.

2. Legal actions were taken under section 138 of the Negotiable Instruments Act, 1881 due to dishonoured cheques by the Corporate Debtor. The Applicant issued a notice under section 8 of the IBC, 2016, which was received but not responded to by the Corporate Debtor, indicating a lack of dispute regarding the unpaid operational debt.

3. The Tribunal proceeded ex-parte due to the non-appearance of the Corporate Debtor's representative, leading to a thorough review of records to establish jurisdiction and adherence to the Law of Limitation. The Tribunal found the claim of default in payment to be valid, especially after the issuance of the section 8 notice and lack of response from the Corporate Debtor.

4. Following a detailed examination of the case, the Tribunal admitted the application, appointed an Interim Resolution Professional, and invoked the moratorium under section 14 of the IBC, 2016. The consequences of initiating the Corporate Insolvency Resolution Process included the IRP taking over the affairs of the Corporate Debtor, calling for creditor claims, and managing the process within specified timelines.

5. The Tribunal directed the Operational Creditor to deposit a specified sum for the IRP's expenses, emphasized compliance with IBC, 2016 provisions, and suspended the powers of the Corporate Debtor's personnel. Communication of the order to relevant parties and authorities was mandated to ensure the smooth progression of the Corporate Insolvency Resolution Process.