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2020 (10) TMI 685 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - unpaid Operational Debt due - existence of debt and dispute or not - HELD THAT - This Adjudicating Authority is satisfied that, a) Existence of debt is above Rs. One Lac; b) Debt is due; c) Default has occurred on 16.03.2018; d) Petition had been filed within the limitation period as the invoices are 2017 whereas the Application is filed on 11.10.2018 which is within 3 years of due for payment; e) The Applicant was invited as a Creditor by the Corporate Debtor to the meeting held for Amalgamation. The Applicant had objected the Amalgamation Petition filed on CP(CAA) 1 of 2019 in CA(CAA) No. 112 of 2018. It is a proof that the Corporate Debtor has acknowledged the Applicant as its Creditor. f) Copy of the Application filed before this Tribunal has been sent to the Corporate Debtor, Notice has been duly served. The Respondent has failed to appear before this Adjudicating Authority and the Petition filed by the Petitioner under Section 9 of IB Code is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against the Corporate Debtor Company. The present IB petition is admitted.
Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IB Code). 2. Existence of operational debt and default by the Corporate Debtor. 3. Validity of the Demand Notice and pre-existing disputes. 4. Appointment of Interim Resolution Professional (IRP). 5. Declaration of moratorium under Section 13 and 14 of the IB Code. Issue-wise Detailed Analysis: 1. Initiation of Corporate Insolvency Resolution Process (CIRP): The Petition was filed on 11.10.2018 under Section 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiation of CIRP against the Corporate Debtor for unpaid operational debt. 2. Existence of Operational Debt and Default: The Petitioner, Megamet Steels Private Limited, claimed that the Corporate Debtor, Agarwal Mittal Concast Private Limited, was indebted to the Petitioner for ?1,52,88,434.00 along with interest at 17% per annum. The Petitioner provided detailed invoices and debit notes. Despite receiving goods, the Corporate Debtor failed to make payments, and a cheque issued by the Corporate Debtor was dishonored. The Petitioner issued a notice under Section 138 of the Negotiable Instruments Act, 1881, and subsequently filed a Criminal Complaint. The Corporate Debtor did not dispute the liability or the quality/quantity of materials supplied. 3. Validity of the Demand Notice and Pre-existing Disputes: The Corporate Debtor raised objections, claiming the Demand Notice was unauthorized and there were pre-existing disputes. They argued that the cheque used by the Petitioner was a blank cheque given as security in 2013 and the account was closed in 2014. However, the Tribunal found no pre-existing dispute before the filing of the application. The Corporate Debtor's defense was deemed inconsistent and not in good faith, as evidenced by the dishonored cheque and acknowledgment of debt. 4. Appointment of Interim Resolution Professional (IRP): The Tribunal appointed Shri Pawan Kumar Ramdhan Agarwal as the Interim Resolution Professional (IRP) with Insolvency Professional Registration No. IBBI/IPA-001/IP-P00414/2017-18/10737. The IRP was directed to make a public announcement of moratorium and follow the provisions of Section 13 and 14 of the IB Code. 5. Declaration of Moratorium: The Tribunal declared a moratorium prohibiting: - Institution or continuation of suits or proceedings against the Corporate Debtor. - Transferring, encumbering, or disposing of any assets of the Corporate Debtor. - Actions to foreclose, recover, or enforce any security interest. - Recovery of property by an owner or lessor. The moratorium would be effective from the date of the order until the completion of the CIRP. Conclusion: The Tribunal admitted the Petition, finding that: - The debt exceeded ?1 lakh. - The debt was due and default had occurred on 16.03.2018. - The Petition was filed within the limitation period. - The Corporate Debtor acknowledged the Petitioner as a creditor. - No pre-existing dispute was observed. The Tribunal directed the initiation of CIRP against the Corporate Debtor and appointed an IRP, declaring a moratorium as per the IB Code provisions.
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