2021 (4) TMI 9 - 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 - HELD THAT - The Corporate Debtor had failed and neglected to pay the sum with respect to the said bills. The Operational Creditor, therefore, issued a Demand Notice dated 27th November, 2019 under section 8 of the Code in Form-3 of the Code on the Corporate Debtor, demanding a sum of ₹ 3,98,890.54/-. The said notice was duly served on the Corporate Debtor by Speed Post with acknowledgement due. Tracking Report in that behalf is annexed as Annexure-H to the petition. The Corporate Debtor did not reply to the Demand Notice dated 27th November, 2019 till the date of filing of the petition. The application is complete in all respect, and deserves admission particularly in view of the fact that the Corporate Debtor has neither given any reply to the Demand Notice nor filed any reply before this Adjudicating Authority. Application admitted - moratorium declared.

Issues:
1. Application under Section 9 of the Insolvency & Bankruptcy Code, 2016 for Corporate Insolvency Resolution Process.
2. Failure of the Corporate Debtor to pay outstanding bills leading to the issuance of a Demand Notice.
3. Admittance of the petition by the National Company Law Tribunal, Kolkata Bench.
4. Declaration of moratorium and public announcement as per the Insolvency & Bankruptcy Code, 2016.
5. Appointment of an Interim Resolution Professional and initiation of the resolution process.

Issue 1: Application under Section 9 of the Insolvency & Bankruptcy Code, 2016 for Corporate Insolvency Resolution Process

The case involved a petition filed under Section 9 of the Insolvency & Bankruptcy Code, 2016 by the Operational Creditor seeking Corporate Insolvency Resolution Process against the Corporate Debtor. The Operational Creditor had supplied goods to the Corporate Debtor, who failed to pay the outstanding bills, leading to the initiation of insolvency proceedings. The petition was supported by relevant documents, including invoices, ledger, bank statements, and a demand notice issued to the Corporate Debtor. The Operational Creditor also proposed the appointment of an Interim Resolution Professional.

Issue 2: Failure of the Corporate Debtor to pay outstanding bills leading to the issuance of a Demand Notice

The Corporate Debtor had failed to pay the sum due with respect to the supplied goods, despite receiving invoices and a demand notice under section 8 of the Code. The Operational Creditor had provided evidence of non-payment, including a bank statement and confirmation that no payment was received post the demand notice. The Corporate Debtor did not respond to the demand notice or file a reply before the Adjudicating Authority, indicating a lack of dispute regarding the unpaid operational debt.

Issue 3: Admittance of the petition by the National Company Law Tribunal, Kolkata Bench

After considering the submissions of both parties and reviewing the petition along with its annexures, the Tribunal found the application to be complete and deserving of admission. The Tribunal noted the lack of response from the Corporate Debtor to the demand notice or before the Adjudicating Authority, leading to the admission of the petition under Section 9 of the Insolvency & Bankruptcy Code, 2016.

Issue 4: Declaration of moratorium and public announcement as per the Insolvency & Bankruptcy Code, 2016

Upon admitting the petition, the Tribunal declared a moratorium in accordance with Sections 13 and 15 of the Insolvency & Bankruptcy Code, 2016. The moratorium prohibited various actions against the Corporate Debtor, including instituting suits, transferring assets, and enforcing security interests. Essential goods or services to the Corporate Debtor were to continue during the moratorium period, and specific transactions exempt from the moratorium were outlined.

Issue 5: Appointment of an Interim Resolution Professional and initiation of the resolution process

The Tribunal appointed an Interim Resolution Professional to ascertain creditors' particulars and convene a Committee of Creditors for developing a resolution plan. The Interim Resolution Professional was tasked with identifying a prospective Resolution Applicant within a specified timeline. The Operational Creditor was directed to deposit a certain amount with the Interim Resolution Professional, and the Tribunal issued instructions for communication of the order to relevant parties and scheduling a progress report filing.

This detailed analysis covers the key issues addressed in the judgment delivered by the National Company Law Tribunal, Kolkata Bench regarding the initiation of Corporate Insolvency Resolution Process under the Insolvency & Bankruptcy Code, 2016.

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