2021 (7) TMI 500 - 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 - In the present case admittedly the demand notice in Form-3 as per Section 8 of the Code was sent on 27.07.2019. It is thus seen that before filing the present application under Section 9 of the Code, requisite notice under Section 8 was duly served on the Respondent. In response to Section 8 notice, respondent Corporate Debtor has sent its reply. However, no pre-existing dispute regarding the services rendered by the applicant has been claimed or proved by the respondent. In the present application all the aforesaid requirements have been satisfied. It is seen that the application preferred by applicant operational creditor is complete in all respect. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the applicant operational creditor. The respondent failed to show that the claim of applicant is disputed. Once, the application is complete and in the absence of any dispute and with the subsistence of default, the application is liable to be admitted. Application admitted - moratorium declared.

Summary

Issues:
1. Initiation of Corporate Insolvency Resolution Process under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Determination of operational debt owed by the Corporate Debtor.
3. Compliance with the procedural requirements under Section 9 of the Code.
4. Appointment of an Insolvency Resolution Professional (IRP) and declaration of moratorium.

Issue 1: Initiation of Corporate Insolvency Resolution Process under Section 9 of the Insolvency and Bankruptcy Code, 2016:

The operational creditor, claiming to be owed a debt by the Corporate Debtor, filed an application under Section 9 of the Code seeking initiation of Corporate Insolvency Resolution Process. The Tribunal, being the Adjudicating Authority due to territorial jurisdiction, reviewed the claim and responses from both parties. The respondent disputed the claim, alleging incomplete services by the applicant, causing hardship. However, the Tribunal noted that the applicant's claim fell within the definition of an "operational creditor" as per the Code. The Tribunal emphasized the necessity of following the procedures outlined in Section 9 for initiating insolvency proceedings.

Issue 2: Determination of operational debt owed by the Corporate Debtor:

The Tribunal examined the definition of "operational creditor" and "operational debt" as per the Code. It found that the applicant, having rendered services to the Corporate Debtor, qualified as an operational creditor. The respondent's objections regarding incomplete services and accounting for a specific financial year were considered, but the Tribunal observed that no pre-existing dispute was proven by the respondent. The Tribunal concluded that the respondent had defaulted in payment of the operational debt claimed by the applicant.

Issue 3: Compliance with the procedural requirements under Section 9 of the Code:

The Tribunal noted that the applicant had duly served a demand notice under Section 8 of the Code before filing the application under Section 9. The respondent's objections were deemed insufficient to disprove the claim, as no evidence of a genuine dispute was presented. The Tribunal referenced a Supreme Court judgment emphasizing the need to establish the existence of operational debt, non-payment, and absence of a dispute. Since all requirements were met, the Tribunal admitted the application and appointed an IRP to oversee the resolution process.

Issue 4: Appointment of an Insolvency Resolution Professional (IRP) and declaration of moratorium:

Following the admission of the application, the Tribunal appointed an IRP to manage the affairs of the Corporate Debtor during the resolution process. A moratorium was declared, imposing restrictions on legal actions against the Corporate Debtor and asset transfers. The IRP was instructed to perform duties diligently and protect the Corporate Debtor's property value. Additionally, the Operational Creditor was directed to deposit funds with the IRP for immediate expenses, to be reimbursed by the Committee of Creditors. The Tribunal emphasized the importance of cooperation and compliance with the Code's provisions throughout the resolution process.

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