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2021 (4) TMI 1001 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - time limitation - HELD THAT - It is seen from the invoices which are filed by the Operational Creditor are all raised in the months of April and June 2017 and the present Application is being filed on 16.12.2019 and as such the present Application under Section 9 of IBC, 2016 falls well within the period of limitation, as Annexure II(6) at Page No. 37 of the typed set statement of account maintained of the Corporate Debtor in its ledger has also been filed by the Operational Creditor showing the principal sum as outstanding. Further, it is also seen that the Corporate Debtor has not replied to the Demand Notice sent by the Operational Creditor and has also not brought to the notice of the Operational Creditor any dispute which is pending in relation to the said transaction. The Operational Creditor has proved the existence of an 'Operational debt' and its 'default' on the part of the Corporate Debtor and in the absence of any objection being raised by the Corporate Debtor, the Corporate Debtor has committed 'default' in the repayment of the 'Operational debt' to the Operational Creditor and in the said circumstances we are constrained to initiate the CIRP in relation to the Corporate Debtor. Monetary limit for initiation of CIRP - HELD THAT - In relation to the pecuniary jurisdiction enhanced from ₹ 1 lakh to ₹ 1 crore on and from 24.03.2020, it is seen the present Application was filed before this Tribunal on 16.12.2019 and as such this Tribunal has got pecuniary jurisdiction to entertain the present Application. The Petition, as filed by the Operational Creditor, is required to be admitted under Section 9(5) of the IBC, 2016 - Petition admitted - moratorium declared.
Issues:
- Application under Section 9 of IBC, 2016 seeking to initiate Corporate Insolvency Resolution Process. - Existence of operational debt and default by Corporate Debtor. - Deliberate avoidance of Corporate Debtor to appear before the Tribunal. - Jurisdiction of the Tribunal. - Appointment of Interim Resolution Professional. - Imposition of moratorium and its implications. - Payment to Interim Resolution Professional. Analysis: 1. The Application was filed by an Operational Creditor seeking to initiate Corporate Insolvency Resolution Process against a Private Limited Company, the Corporate Debtor, under Section 9 of IBC, 2016. The Operational Creditor claimed a principal sum along with interest, asserting that the Corporate Debtor failed to clear the dues despite Demand Notices and no pending disputes were notified by the Corporate Debtor. 2. The Tribunal noted the absence of the Corporate Debtor during various hearings, indicating deliberate avoidance. The Operational Creditor provided invoices as evidence, showing the debt originated in 2017, well within the limitation period. The Corporate Debtor's non-response to the Demand Notice further supported the Operational Creditor's claim of default by the Corporate Debtor. 3. Considering the facts presented, the Tribunal concluded that the Operational Creditor proved the existence of operational debt and default by the Corporate Debtor. With no objections raised by the Corporate Debtor, the Tribunal decided to admit the Application under Section 9(5) of the IBC, 2016. 4. The Tribunal addressed the pecuniary jurisdiction, confirming its authority to entertain the Application based on the filing date. An Interim Resolution Professional was appointed from the latest list provided by the Insolvency and Bankruptcy Board of India, subject to necessary disclosures and no pending disciplinary proceedings. 5. The Tribunal imposed a moratorium as per Section 14(1) of the Code, restricting certain actions against the Corporate Debtor during the resolution process. Essential supplies were to continue, and the duration of the moratorium was specified until the completion of the Corporate Insolvency Resolution Process. 6. The Operational Creditor was directed to pay a specified amount to the Interim Resolution Professional to cover expenses. The Application was admitted, and the moratorium came into effect immediately. The Registry was tasked with communicating the Order to all relevant parties and authorities, ensuring compliance with the resolution process.
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