2021 (10) TMI 769 - 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 - It was informed that the 2nd motion was pending wherein there are objections filed. The matter is listed in mid October. We were of the view that under the scheme the debt is also admitted. This bench if passes order of admission, it will not be prejudicial to any party. On the contrary all the Creditors will be taken care of. Even during CIRP and/or Liquidation, provision of arrangement and compromise of scheme can be invoked. Passing of this order will bring early resolution of the Corporate Debtor. As per Section 9(5)(i) of the Code. The Adjudicating Authority by an order admit the application if (a) the application made under sub-section (2) is complete (b) there has been no payment of the unpaid operational debt, (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor, (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; or (e) there is no disciplinary proceeding is pending against any proposed resolution professional. The Applicant has satisfied the bench that there is a debt which is in default and no payment has been received with respect to the same - since there is a clear cut admission on the part of the Corporate Debtor, this Adjudicating Authority initiates CIRP of the Corporate Debtor. Application allowed - moratorium declared.

Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP)
2. Validity and enforceability of the service agreement
3. Admissibility of the claim by the Operational Creditor
4. Jurisdiction of the Tribunal
5. Impact of Scheme of Compromise and Arrangement before the Hon'ble Delhi High Court
6. Compliance with procedural requirements under the Insolvency and Bankruptcy Code (IBC), 2016

Detailed Analysis:

1. Initiation of Corporate Insolvency Resolution Process (CIRP):
The application was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 by My Kind Vacations Private Limited, seeking initiation of CIRP against IYOGI Technical Services Private Limited for defaulting on payment of ?23,16,838/- plus interest. The Tribunal found that the Corporate Debtor had neither denied its liability nor rebutted the claim of the Operational Creditor, thus satisfying the conditions for initiating CIRP.

2. Validity and Enforceability of the Service Agreement:
The Tribunal noted that the Corporate Debtor entered into a service agreement with the Applicant on 23.04.2012 for various travel-related services. Despite the agreement being valid for one year, the Corporate Debtor continued to use the Applicant's services under the same terms. The Tribunal acknowledged the continuity of the agreement and the services provided by the Applicant, validating the enforceability of the agreement.

3. Admissibility of the Claim by the Operational Creditor:
The Applicant raised invoices from March 2015 to December 2015, which were partially paid by the Corporate Debtor. The Corporate Debtor acknowledged the outstanding amount via email and promised to clear the dues by 31.01.2016. The Applicant issued a demand notice under Section 8 of the Code on 01.06.2017, which the Corporate Debtor did not respond to within the stipulated time. The Tribunal confirmed the admissibility of the claim based on the acknowledgment and the lack of dispute.

4. Jurisdiction of the Tribunal:
The registered office of the Corporate Debtor is situated in Delhi, giving the Tribunal jurisdiction to entertain and try the application. The Tribunal confirmed that the application was filed within the period of limitation, as the date of default was 01.04.2016 and the application was filed on 01.09.2017.

5. Impact of Scheme of Compromise and Arrangement before the Hon'ble Delhi High Court:
The Corporate Debtor informed the Tribunal about the Scheme of Compromise and Arrangement pending before the Hon'ble Delhi High Court, which included the Applicant's claim. The Tribunal noted that the Corporate Debtor had admitted its liability before the High Court and agreed to pay 100% of the principal amount to the unsecured creditors, including the Applicant. The Tribunal considered the scheme but decided that initiating CIRP would not prejudice any party and could lead to an early resolution.

6. Compliance with Procedural Requirements under the IBC, 2016:
The Tribunal found that the Applicant had complied with all procedural requirements under Section 9(3)(b) of the Code. The application was complete, there was no payment of the unpaid operational debt, the demand notice was duly delivered, and there was no record of dispute or disciplinary proceedings against the proposed resolution professional. Consequently, the Tribunal admitted the application and initiated CIRP.

Conclusion:
The Tribunal admitted the application for initiating CIRP against the Corporate Debtor, imposed a moratorium under Section 14 of the Code, and appointed Mr. Sumit Sharma as the Interim Resolution Professional (IRP). The Applicant was directed to deposit ?2 lakhs for the IRP's immediate expenses, and the order was communicated to all relevant parties and authorities for compliance and record updates.

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