2021 (2) TMI 947 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT - The demand notice dated 06.12.2018 was sent at the address mentioned in the master data of the corporate debtor as well as at the email address. The postal receipt along with tracking report and email sent to the corporate debtor are at Annexures-8 and 9 respectively. A compliance affidavit filed vide Diary No.862 dated 20.02.2019 showing the postal envelope vide which the demand notice was sent to the corporate debtor and same was returned with remarks left is at Annexure A-1. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - The respondent-corporate debtor has neither filed any reply to the petition nor disputed the liability towards the operational creditor. Thus, there is no dispute regarding the liability between the corporate debtor and the operational creditor. It is also observed that till the last date of hearing, there has been no representation from the respondent-corporate debtor. There is a total unpaid operational debt (in default) of ₹ 21,57,659.69. It is stated that the demand notice dated 06.12.2018 was sent for an amount of ₹ 21,57,659.69. Copy of ledger account of corporate debtor in the books of operational creditor for the period 17.04.2018 to 26.09.2018 is appended as Annexure-4. As a statutory requirement under Section 9(3)(b) of the Code, an affidavit dated 18.01.2019 (page Nos.17A to 18) stating that despite service of the demand notice dated 06.12.2018, the corporate debtor did not raise any dispute qua the outstanding payment and even no dispute was pending with or arose from the corporate debtor prior to sending of the statutory demand notice. Debt and default or not - HELD THAT - It has been shown that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till date. It is also observed that the conditions under Section 9 of the Code stand satisfied. The operational creditorpetitioner states that from the above mentioned fact it is clear that the liability of the respondent-corporate debtor is undisputed. Accordingly, the petitioner has proved the debt and the default, which is more than ₹ 1 lac by the respondent-corporate debtor. The present petition being complete and having established the default in payment of the Operational Debt for the default amount being above ₹ 1,00,000/-, the petition is admitted in terms of Section 9(5)(i) of the IBC and accordingly, moratorium is declared in terms of Section 14 of the Code - Application admitted.

Summary

Issues:
1. Initiation of Corporate Insolvency Resolution Process under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Proper service of demand notice.
3. Dispute regarding operational debt.
4. Admission of the petition and declaration of moratorium.
5. Appointment of Interim Resolution Professional and constitution of Committee of Creditors.

Analysis:
1. The petition was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 seeking initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. The jurisdiction of the Adjudicating Authority was established as the Corporate Debtor fell within its territorial limits. The petition detailed the operational debt owed by the Corporate Debtor to the Operational Creditor, highlighting the default amount and non-payment issues.

2. The first issue addressed was the proper service of the demand notice. The Tribunal examined the evidence of service, including postal receipts, tracking reports, and emails sent to the Corporate Debtor. It was established that the demand notice was duly served at the address and email provided for the Corporate Debtor.

3. Regarding the dispute over the operational debt, it was noted that the Corporate Debtor neither replied to the petition nor disputed the liability towards the Operational Creditor. The absence of any representation from the Corporate Debtor indicated the lack of dispute regarding the outstanding payment.

4. Upon thorough review of the petition and supporting documents, the Tribunal found the petition to be complete and established the default in payment of the operational debt. The debt amount, exceeding the statutory threshold, was proven undisputed. Consequently, the petition was admitted under Section 9(5)(i) of the IBC, and a moratorium was declared under Section 14 of the Code.

5. The Tribunal proceeded to appoint an Interim Resolution Professional, approving the proposed candidate after verifying credentials. The Interim Resolution Professional was tasked with fulfilling the obligations mandated by the IBC, including constituting a Committee of Creditors, collating claims, and submitting progress reports to the Tribunal at regular intervals. The order was communicated to the parties, and necessary copies were directed to be delivered promptly.

This comprehensive analysis of the judgment highlights the legal intricacies involved in the initiation of Corporate Insolvency Resolution Process and the subsequent steps taken by the Tribunal to address the issues raised in the petition.