2020 (5) TMI 321 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make payment of dues - existence of debt and dispute or not - HELD THAT - In annexure P18 dated July 5, 2015 of the respondent-corporate debtor written to the petitioner, categorically admitted and acknowledged the debt of ₹ 3,72,19,060 due to the petitioner. Thereafter, after adjusting the amount paid by the respondent-corporate debtor, the debt due was ₹ 2,66,82,849 and after adding the interest thereon the total amount of debt due and in default was ₹ 6,36,10,875. Annexure P5/A of the petition, i. e., the certificate under section 9(3)(c) of the IBC Code, 2016 issued by the State Bank of India also confirms the admission and part payment of various amounts by the respondent-corporate debtor to the petitioner - The petitioner proved the debt and the default, which is more than ₹ 1 lakh by the respondent-corporate debtor. Since the petition is complete in all respects, the same is admitted - moratorium declared.

Summary

Issues Involved
1. Filing of the petition under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Authorization and representation of the petitioner.
3. Territorial jurisdiction of the Tribunal.
4. Facts and background of the case.
5. Admission of debt and default by the respondent.
6. Compliance with Section 9(5)(i) of the Insolvency and Bankruptcy Code, 2016.
7. Declaration of moratorium.
8. Appointment of Interim Resolution Professional (IRP).

Detailed Analysis

Filing of the Petition
The petition was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (the "Code") read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (the "Rules"). The application was submitted in Form 5 as prescribed in Rule 6(1) of the Rules.

Authorization and Representation
The application was filed by Mr. Darshan Anil Lodha, the proprietor of M/s. A. B. Lodha (the "petitioner" and/or "operational creditor"). The petitioner authorized Shri Pankaj Dharmadhikari, manager-contracts, to file the petition on its behalf, with the letter of authority and power of attorney annexed as evidence.

Territorial Jurisdiction
The respondent, Kopargaon Ahmednagar Tollways (Phase-I) P. Ltd. (the "respondent" and/or "corporate debtor"), is a company incorporated under the Companies Act, 1956, with its registered office in District Gurugram, Haryana. Therefore, the matter falls within the territorial jurisdiction of the National Company Law Tribunal, Chandigarh Bench.

Facts and Background
The petitioner, engaged in infrastructure and construction, executed work orders issued by Pranjal Infrastructure Ltd. ("Pranjal") under a project awarded by the Government of Maharashtra. Despite completion and issuance of completion certificates, amounts remained unpaid by Ram Infrastructure Ltd. ("RIL") and Pranjal. A share purchase agreement was executed, wherein SIBPL (the holding company of the respondent) acknowledged the outstanding debt of ?3,72,19,060 to the petitioner. Partial payments were made by the respondent, but a substantial amount remained unpaid, leading to the issuance of demand notices under Section 8 of the Code.

Admission of Debt and Default
The respondent-corporate debtor admitted and acknowledged the debt of ?3,72,19,060 in a letter dated July 5, 2015. After adjusting payments, the outstanding debt was ?2,66,82,849, which, with interest, totaled ?6,36,10,875. The petitioner provided a certificate under Section 9(3)(c) of the Code from the State Bank of India confirming the debt and partial payments.

Compliance with Section 9(5)(i)
The Tribunal verified compliance with Section 9(5)(i) of the Code, which mandates admission of the application if:
- The application is complete.
- There is no payment of the unpaid operational debt.
- The invoice or notice for payment has been delivered.
- No notice of dispute has been received.
- No disciplinary proceeding is pending against the proposed resolution professional.

The Tribunal found that all conditions were met, and the petition was complete in all respects.

Declaration of Moratorium
The Tribunal declared a moratorium as per Section 14(1) of the Code, which includes:
- Suspension of suits or proceedings against the corporate debtor.
- Prohibition on transferring or disposing of assets.
- Prevention of actions to recover or enforce security interests.
- Protection of essential goods or services supply to the corporate debtor during the moratorium period.

Appointment of Interim Resolution Professional (IRP)
As the petitioner did not propose a resolution professional, the Tribunal referred to the Board for recommendation. Mr. Vanit Kumar Mittal was appointed as the interim resolution professional, with specific directions to:
- Suspend the powers of the board of directors.
- Manage the affairs of the corporate debtor.
- Make a public announcement of the corporate insolvency resolution process.
- Constitute a committee of creditors and file a report.
- Send regular progress reports to the Tribunal.

The Tribunal directed the petitioner to deliver a copy of the order to the interim resolution professional and instructed the registry to send a copy to the IRP via email.