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2021 (4) TMI 720 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - dismissal of earlier CP filed by operational creditor, a bar for filing another CP in respect of the same debt, or not - petition filed within the time limitation or not - HELD THAT - The respondent-corporate debtor admitted the liability on 18.11.2015. Once an admission is made by the corporate debtor with regard to the liability towards the operational creditor, the same is required to be considered as an acknowledgment of debt and accordingly, it can be safely concluded that the instant CP filed on 13.11.2018 is well within the limitation period of three years from 18.11.2015 i.e. date of Annexure P-8 e-mail dated 18.11.2015. None of the decisions on which the learned counsel for the respondent placed reliance stated that the admission of debt made in an e-mail cannot be considered as an admission of debt and does not extend the period of limitation. It is the settled principle of law that dismissal of earlier CP filed by operational creditor is not a bar for filing another CP in respect of the same debt, if the petitioner is able to prove the subsistence of a legally enforceable debt and if the subsequent CP is filed within the period of limitation. The application is complete in all aspects and also no objections are being raised to the completeness of the application filed under Section 9(2) of the Code - Petition admitted - moratorium declared.
Issues Involved:
1. Jurisdiction and Admissibility of the Petition 2. Acknowledgment of Debt and Limitation Period 3. Validity of the Claim and Invoices 4. Interest Rate Claim 5. Appointment of Interim Resolution Professional (IRP) 6. Declaration of Moratorium Issue-wise Detailed Analysis: 1. Jurisdiction and Admissibility of the Petition The petition was filed 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, by M/s. Pawan Cargo Forwards Pvt. Ltd. (Operational Creditor) for initiating the Corporate Insolvency Resolution Process (CIRP) against M/s. Bestways Transport (India) Ltd. (Corporate Debtor). The corporate debtor was incorporated on 16.11.1983, and its registered office is located in Faridabad, Haryana, thus falling under the jurisdiction of the Chandigarh Bench of the Tribunal. 2. Acknowledgment of Debt and Limitation Period The operational creditor claimed that the corporate debtor acknowledged its liability via emails dated 29.10.2012 and 18.11.2015. The total amount due, including interest, was ?5,32,61,032 as of 01.03.2018. The corporate debtor argued that the email dated 18.11.2015 was sent by an unauthorized employee and could not be considered an acknowledgment of liability under the Limitation Act, 1963. However, the Tribunal concluded that the email constituted an acknowledgment of debt, thereby extending the limitation period. The petition filed on 13.11.2018 was deemed within the three-year limitation period from the date of acknowledgment. 3. Validity of the Claim and Invoices The corporate debtor contended that the claims were time-barred and that certain invoices were not reflected in their accounts, questioning their genuineness. The Tribunal noted that the operational creditor had provided a ledger account and copies of unpaid invoices. Despite the corporate debtor's arguments, the Tribunal found that the debt was acknowledged and the claim was valid. 4. Interest Rate Claim The corporate debtor disputed the 24% per annum interest rate claimed by the operational creditor, stating there was no agreement for such an exorbitant rate. The Tribunal did not specifically address the interest rate issue but focused on the acknowledgment of the principal debt, which was sufficient for admitting the petition. 5. Appointment of Interim Resolution Professional (IRP) The operational creditor did not propose the name of an IRP. Consequently, the Tribunal referred to the Board for the recommendation of an IRP. Mr. Khushvinder Singhal was appointed as the IRP. The Tribunal checked his credentials and found nothing adverse against him. The IRP was directed to take over the management of the corporate debtor, prepare an inventory of assets, and convene the first meeting of the Committee of Creditors within thirty days. 6. Declaration of Moratorium The Tribunal declared a moratorium effective from the date of the order until the completion of the CIRP or until a resolution plan is approved or liquidation is ordered. The moratorium included the suspension of all suits and proceedings against the corporate debtor, prohibition of transferring or disposing of assets, and ensuring the supply of essential goods and services to the corporate debtor. Conclusion The Tribunal admitted the petition for initiating CIRP against the corporate debtor, declared a moratorium, and appointed Mr. Khushvinder Singhal as the IRP. The decision was based on the acknowledgment of debt via email, which extended the limitation period, and the operational creditor's compliance with the procedural requirements of the Insolvency and Bankruptcy Code, 2016.
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