2020 (5) TMI 612 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - time limitation - HELD THAT - The Corporate Debtor has not submitted any document with respect to any communication between the Corporate . Debtor and M/S. Yes Corporation pursuant to the fact that kerosene was delivered in place of aromatic spirit which was allegedly supplied by the Operational Creditor to the Corporate Debtor. It is observed that the Corporate Debtor has not placed on record any prior communication or has raised an issue or dispute with the Operational Creditor with respect to supply of kerosene in place of aromatic spirit to substantiate the argument of per existing dispute between the parties. It is further observed that the invoices raised by the Operational Creditor mention the relevant date and the rate of Interest 18%. The present petition being filed in July, 2019 is within the limitation, being within three years from the date of the cause of action - Petition admitted - moratorium declared.

Issues:
1. Invocation of Section 9 of the Insolvency & Bankruptcy Code, 2016 for non-payment of dues.
2. Existence of dispute between the parties regarding the quality of goods supplied.
3. Compliance with mandatory requirements of law in the notice served under Section 8 of the Insolvency & Bankruptcy Code, 2016.
4. Lack of written agreement regarding interest payment.
5. Admissibility of the petition within the limitation period.

Issue 1: Invocation of Section 9 of the Insolvency & Bankruptcy Code, 2016
The petition was filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 by the Operational Creditor due to non-payment of dues by the Corporate Debtor. The Operational Creditor supplied goods to the Corporate Debtor, and despite partial payments, a significant amount remained unpaid along with accrued interest. The Operational Creditor served a demand notice seeking payment, which was not responded to by the Corporate Debtor. The Tribunal found the petition to be in the required format with supporting affidavits under Section 9(3)(b) and 9(3)(c) of the Code, thus initiating the Corporate Insolvency Resolution Process.

Issue 2: Existence of dispute between the parties regarding the quality of goods supplied
The Corporate Debtor contended that there was a dispute regarding the quality of goods supplied by the Operational Creditor. They claimed that the goods delivered were different from what was ordered, leading to a disagreement with another party involved in the transaction. However, the Tribunal noted that the Corporate Debtor failed to provide any evidence of prior communication or dispute raised with the Operational Creditor regarding the quality of goods. As a result, the Tribunal found insufficient grounds to establish a pre-existing dispute between the parties.

Issue 3: Compliance with mandatory requirements of law in the notice served under Section 8 of the Insolvency & Bankruptcy Code, 2016
The Corporate Debtor argued that the notice served under Section 8 of the Code was defective and did not meet the mandatory legal requirements. However, the Tribunal did not find merit in this argument and proceeded with the petition based on the Operational Creditor's compliance with the statutory provisions and serving a valid demand notice seeking payment within the stipulated period.

Issue 4: Lack of written agreement regarding interest payment
The Corporate Debtor raised a point about the absence of a written agreement specifying the 18% interest allegedly payable. However, the Tribunal observed that the invoices raised by the Operational Creditor mentioned the relevant dates and the interest rate clearly, which was deemed sufficient to establish the claim for interest as per the contractual terms.

Issue 5: Admissibility of the petition within the limitation period
The Tribunal confirmed that the petition was filed within the limitation period of three years from the date of the cause of action, making it admissible. Considering the circumstances and the lack of substantial evidence supporting the Corporate Debtor's claims, the Tribunal admitted the petition and initiated the Corporate Insolvency Resolution Process, imposing a moratorium as per Section 14 of the Code.

In conclusion, the Tribunal admitted the petition filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 due to non-payment of dues by the Corporate Debtor. Despite the Corporate Debtor's contentions, the Tribunal found the Operational Creditor's claims to be valid and initiated the Corporate Insolvency Resolution Process, appointing an Insolvency Professional to oversee the proceedings and directing the Operational Creditor to deposit funds for immediate expenses.

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