2020 (9) TMI 1035 - AT - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational debt or not - time limitation - Section 8 of the IBC, 2016. Whether the debt mentioned in the Demand Notice is an operational debt and whether there is default in its payment? - HELD THAT - A conjoint reading of Sections 8 and 9 of the IBC makes it incumbent on the operational creditor to show the amount of debt in default and the date of default clearly and should also provide credible proof about the purchase and supply of goods and services as claimed. Hence the operational creditor s claim of debt of ₹ 50,32,028/- and default in payment of the cost relating to supply and installation and managed professional services is not established as required in Sections 8 and 9 of the IBC - The Corporate Debtor, in his reply dated 03.12.2018 to the Demand Notice, has accepted placing purchase order of 30 nos. GPS vehicle trackers and receiving the supply. Since the Corporate Debtor has accepted the supply pending payment relating to these 30 vehicle trackers; hence it is an admitted Operational Debt. Whether the application filed under Section 8 of the IBC, 2016 for the relevant operational debt is within limitation? - HELD THAT - It is for the Resolution Professional and the Committee of Creditors to consider all these claims received in the process of CIRP. We also hope that the stakeholders as well as the IRP and COC shall keep in mind that the IBC is a beneficial legislation which is not meant to put going concerns/entities in resolution for small acts of commission or omission which can be rectified - The Corporate Debtor has raised the issue of not been accorded an opportunity to advance oral arguments by the Ld. Adjudicating Authority on the date of final hearing i.e. 06.12.2019. It is seen by us that the Ld. Adjudicating Authority has, in the interest of adhering to timelines given in IBC, considered the oral arguments made by the Ld. Counsel of the Corporate Debtor made on the previous date of hearing. He has decided to close the arguments on 06.12.2019 and pass the final judgment in the case after taking into account all the submissions, which include written and oral submissions, and hence it cannot be said that the Corporate Debtor was denied reasonable opportunity to be heard. There are no infirmity in the order of the Learned Adjudicating Authority. The interim stay order relating to non-constitution of the Committee of Creditors passed by this Tribunal on 03.02.2020 is hereby vacated and the Interim Resolution Professional shall take further action with regard to the Corporate Insolvency Resolution Process.

Summary

Issues Involved:
1. Whether the debt mentioned in the Demand Notice is an operational debt and whether there is default in its payment?
2. Whether the application filed under Section 8 of the IBC, 2016 for the relevant operational debt is within limitation?

Issue-wise Detailed Analysis:

1. Whether the debt mentioned in the Demand Notice is an operational debt and whether there is default in its payment?

The Operational Creditor, M/s. PVM Innvensys Private Limited, supplied GPS equipment and provided services to the Corporate Debtor, M/s. C-Tel Infosystems Private Limited, under two agreements. The transactions included the supply and installation of 804 GPS vehicle trackers and 30 Hippo GPS vehicle trackers. The Operational Creditor issued a Demand Notice on 20.11.2018, claiming a total unpaid debt of ?50,32,028 plus interest for the 804 trackers and ?3,67,200 for the 30 trackers.

The Corporate Debtor, in its reply dated 3.12.2018, disputed the supply of 804 trackers and acknowledged only the 30 trackers. The Adjudicating Authority found that the debt of ?3,67,200 for the 30 trackers was admitted by the Corporate Debtor and remained unpaid, thus qualifying as an operational debt under Section 5(21) of IBC 2016.

The Tribunal noted that the Demand Notice and application under Section 9 of IBC should clearly establish the amount of debt, date of default, and provide proof of transactions. The Operational Creditor failed to provide conclusive proof for the 804 trackers, such as purchase orders or delivery challans. However, the debt for the 30 trackers was substantiated by the Corporate Debtor's acknowledgment, making it an admitted operational debt.

2. Whether the application filed under Section 8 of the IBC, 2016 for the relevant operational debt is within limitation?

The application under Section 9 of IBC was filed on 08.12.2018, within three years of the purchase order dated 12.12.2015 for the 30 GPS trackers. The Tribunal found the claim within the limitation period for the 30 trackers, thus making the application maintainable.

The Tribunal also considered the continuous business dealings between the parties, which supported the claim of ongoing transactions and payments. The Corporate Debtor's acknowledgment of the 30 trackers and the lack of pre-existing dispute further validated the claim.

Conclusion:

The Tribunal upheld the Adjudicating Authority's decision to admit the application under Section 9 of IBC for the unpaid debt of ?3,67,200 related to the 30 GPS trackers. The interim stay on the constitution of the Committee of Creditors was vacated, and the Interim Resolution Professional was directed to proceed with the Corporate Insolvency Resolution Process. The Tribunal emphasized that the IBC aims to resolve insolvency issues without unduly penalizing operational entities for minor defaults.