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2020 (10) TMI 678 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor's failure to reduce or liquidate its liability - HELD THAT - The invoices on the basis of which the Operational Creditor claimed the amount are referred in Para-1 of the demand notice and at Para-7 the document which are enclosed with the demand notice are also shown - further, the invoice raised on 12th December, 2015 regarding the supply of 30 numbers of Hippo Vehicle tracker are also enclosed alongwith the demand notice. Service of SCN - HELD THAT - The demand notice was delivered. It was delivered in the prescribed form and the unpaid operational debt is shown in the demand notice, even the invoices against which the demand notice was delivered is mentioned at Para-7 of the demand notice - there are no force in the contention raised on behalf of the Corporate Debtor that the demand notice was not properly delivered. Pre-existing dispute regarding the amount/debt raised by the Operational Creditor or not - HELD THAT - There are no dispute as required under Section 8(2) of the IBC, 2016 has been raised, after receiving the demand notice, therefore, I am unable to accept the contention of the Corporate Debtor that there is a pre-existing dispute between the parties prior to the delivery of the demand notice even after receiving the demand notice no such issue was raised in the reply sent by the Corporate Debtor to the Operational Creditor. Hence, I find, no force in the contention raised by the Corporate Debtor - the amount is still due and there is default and Corporate Debtor is liable to pay that amount. The application under section 9(2) of the Code is complete, at least default of ₹ 3,67,200/- is admitted by the Corporate Debtor and that has not been paid. It is established by the certificate issued by the Axis Bank which is at page number 280 Annexure 19. Hence, there is no payment of unpaid operational debt, the demand notice has been delivered by the Operational Creditor, no notice of dispute has been raised and the amount is more than 1 lakh. Since these contentions are fulfilled then the Adjudicating Authority has no option but to admit the application of the Operational Creditor. Petition admitted - moratorium declared.
Issues Involved:
1. Maintainability of the petition. 2. Proof of supply and installation of GPS vehicle trackers. 3. Limitation period for filing the petition. 4. Pre-existing dispute between the parties. 5. Proper delivery of demand notice. 6. Admission of debt by the Corporate Debtor. Detailed Analysis: 1. Maintainability of the Petition: The Corporate Debtor argued that the petition is not maintainable due to lack of evidence for the supply of 804 GPS vehicle trackers. The Tribunal found that the Operational Creditor had provided sufficient documentation, including email correspondence and bank certificates, proving the supply and installation of the trackers, thus establishing the maintainability of the petition. 2. Proof of Supply and Installation of GPS Vehicle Trackers: The Operational Creditor supplied GPS equipment and services under agreements dated 02.05.2014 and 01.09.2014. Payments and TDS deductions were made by the Corporate Debtor, confirming the transactions. The Corporate Debtor admitted to the supply of 30 GPS trackers but disputed the supply of 804 trackers. The Tribunal found that the Operational Creditor provided adequate proof, including delivery challans and bank certificates, confirming the supply and installation of the trackers. 3. Limitation Period for Filing the Petition: The Corporate Debtor contended that the claim was time-barred. The Tribunal noted that the last invoice was raised on 14.12.2015, and the petition was filed on 11.12.2018, within the three-year limitation period as per Article 137 of the Limitation Act. Thus, the petition was deemed timely. 4. Pre-existing Dispute Between the Parties: The Corporate Debtor argued that there was a pre-existing dispute regarding the quantity of GPS trackers supplied. The Tribunal referenced the Supreme Court's decision in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd., which requires that any dispute must be bona fide and pre-existing before the receipt of the demand notice. The Tribunal found no evidence of a pre-existing dispute, as the Corporate Debtor did not raise any such issue in response to the demand notice. 5. Proper Delivery of Demand Notice: The Corporate Debtor claimed that the demand notice was not properly delivered as it did not include all relevant invoices. The Tribunal found that the demand notice mentioned the unpaid operational debt and included the necessary invoices, fulfilling the requirements of Section 8 of the IBC. Thus, the demand notice was deemed properly delivered. 6. Admission of Debt by the Corporate Debtor: The Corporate Debtor admitted to the supply of 30 GPS trackers valued at ?3,67,200/- but claimed this amount had been paid. The Tribunal found no evidence of payment and accepted the bank certificate provided by the Operational Creditor, confirming the non-payment. The Tribunal held that the debt was due and unpaid, fulfilling the criteria for initiating the Corporate Insolvency Resolution Process (CIRP). Conclusion: The Tribunal admitted the petition, initiating the CIRP against the Corporate Debtor. A moratorium was imposed, and an Interim Resolution Professional (IRP) was appointed. The Operational Creditor was directed to deposit ?2 lakhs for the IRP's immediate expenses, to be reimbursed as CIR costs. The Tribunal scheduled further consideration of the case.
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