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2021 (11) TMI 185 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - service of demand notice - HELD THAT - The demand notice was delivered to the registered address of the corporate debtor on 02.05.2019 and original postal receipt along with the tracking report are attached as Annexure A-6 (Colly) of the petition. As per tracking report, it is seen that notice was delivered with the remarks Item Delivered to the registered address of the corporate debtor. In view of the same, it is held that the demand notice has been duly served. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - It could be seen that the corporate debtor has chosen not to file reply to the petition despite being granted 3 weeks to do so nor has corporate debtor entered into appearance after 27.01.2020. It is deposed by the operational creditor that no reply has been received to the demand notice dated 25.04.2019 from the corporate debtors. It is also deposed that there is no dispute of unpaid operational debt pending between the parties in any court of law or any other authority. It implies that there is no dispute in relation to the debt claimed as per Part IV of Form 5. Whether this application is filed within limitation? - HELD THAT - A demand notice in Form 3 attached as Annexure A-6 (Colly) was duly served on the corporate debtor on 02.05.2019 and the due date to honour the outstanding due as per the demand notice was on 12.05.2019. It is observed that neither any reply from the corporate debtor has been filed in lieu of the above stated demand notice nor any payment has been made, therefore, the period of limitation would begin from 12.05.2019. This application was filed on 17.07.2019 - this Adjudicating Authority finds that this application was filed within limitation. It has been shown that the corporate debtor has failed to make payment of the aforesaid amount due. It is also observed that the conditions under Section 9 of the Code stand satisfied. Accordingly, the petitioner proved the debt and the default, which is more than ₹ 1 lakh by the respondent-corporate debtor. The present petition being complete and having established the default in payment of the Operational Debt for the default amount being above ₹ 1,00,000/-, the petition is admitted in terms of Section 9 of the IBC - moratorium declared.
Issues Involved:
1. Validity of demand notice service 2. Dispute over operational debt 3. Timeliness of the application 4. Admission of the petition under Section 9 of the IBC 5. Appointment of Interim Resolution Professional Validity of Demand Notice Service: The Tribunal examined whether the demand notice in Form 3 dated 25.04.2019 was properly served. The notice was delivered to the registered address of the corporate debtor on 02.05.2019, as evidenced by the original postal receipt and tracking report. The report indicated successful delivery to the corporate debtor's registered address, confirming proper service of the demand notice. Dispute over Operational Debt: The Tribunal considered whether the operational debt was disputed by the corporate debtor. Despite being granted time to file a reply and appear in the proceedings, the corporate debtor failed to respond. The operational creditor affirmed receiving no reply to the demand notice and stated the absence of any dispute regarding the unpaid operational debt, indicating the lack of pending disputes in any legal forum. Timeliness of the Application: Another issue addressed was whether the application was filed within the statutory limitation period. The demand notice was served on 02.05.2019, setting the due date for payment at 12.05.2019. As the corporate debtor neither replied nor made payment by the due date, the limitation period started from 12.05.2019. Since the application was filed on 17.07.2019, it was deemed timely by the Adjudicating Authority. Admission of the Petition under Section 9 of the IBC: After reviewing the application and supporting documents, the Tribunal found the petition complete, establishing the default in payment of operational debt exceeding ?1,00,000. Consequently, the petition was admitted under Section 9 of the IBC, leading to the declaration of moratorium under Section 14 of the Code. Appointment of Interim Resolution Professional: The Tribunal appointed Mr. Tarsem Chand Garg as the Interim Resolution Professional, selected from the panel approved for the NCLT Chandigarh Bench. Mr. Garg's credentials were verified, and no adverse findings were reported. The appointed IRP was directed to fulfill the obligations mandated under various sections of the IBC, ensuring the constitution of the Committee of Creditors and submitting progress reports regularly. This comprehensive analysis of the judgment highlights the key issues addressed by the Tribunal, including the validity of the demand notice service, dispute over operational debt, timeliness of the application, admission of the petition under the IBC, and the appointment of the Interim Resolution Professional.
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