2021 (11) TMI 248 - 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 - time limitation - service of demand notice - Section 8 of IBC, 2016 - HELD THAT - From perusal of Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, it emerges that the Demand Notice under Section 8 of IBC, 2016 can be issued by the Operational Creditor in two formats i.e. Form 3 and in Form 4. In the present case, the Operational Creditor has preferred to send the Demand Notice to the Corporate Debtor in Form - 4 on 29.10.2019. However it is the contention of the Learned Counsel for the Corporate Debtor that the Demand Notice sent in Form 4 is invalid and incomplete. It is to be noted that whether the invoices sent by the Operational Creditor is able to prove that the 'operational debt' is due and payable by the Corporate Debtor. Based on the documents in the typed set, more particularly, the balance confirmation mail by Corporate Debtor, is more than sufficient to prove the existence of the 'operational debt' and hence the contentions raised by the Learned Counsel for the Corporate Debtor in this regard are not sustainable and valid in the eye of law, there is no such pre-existing dispute and also the Demand Notice issued by the Operational Creditor does not suffer from any legal infirmities. 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 Involved:
1. Validity of Demand Notice under Section 8 of IBC, 2016.
2. Existence of pre-existing dispute.
3. Appointment of Interim Resolution Professional.
4. Application of moratorium under Section 14 of IBC, 2016.

Detailed Analysis:

1. Validity of Demand Notice under Section 8 of IBC, 2016:
The primary issue was whether the Demand Notice served by the Operational Creditor in Form 4 satisfies the mandatory requirements under Section 8 of the Insolvency & Bankruptcy Code, 2016 (IBC, 2016). The Tribunal emphasized that Section 8(1) mandates an operational creditor to deliver a demand notice of unpaid operational debt or a copy of an invoice demanding payment. According to Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, the notice can be in Form 3 or Form 4. The Operational Creditor chose Form 4, which included necessary documents like the outstanding list with interest, purchase orders, invoices raised, and export promotion copy. The Tribunal found these documents sufficient to prove the existence of the operational debt, thus validating the Demand Notice.

2. Existence of Pre-existing Dispute:
The Corporate Debtor contended that there was a pre-existing dispute, citing email conversations and discrepancies in the invoices. However, the Tribunal noted that the email exchanges showed no dispute regarding the goods supplied or the amount claimed. The only issue raised pertained to currency exchange rate variations. The Tribunal referenced the Supreme Court's ruling in *Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd.*, which stated that a dispute must be genuine and not a spurious defense. The Tribunal concluded that no substantial dispute existed, and the contentions by the Corporate Debtor were unsupported by evidence.

3. Appointment of Interim Resolution Professional:
Since the Operational Creditor did not propose an Interim Resolution Professional (IRP), the Tribunal appointed Mr. Thilagar Murugesan as the IRP from the list furnished by the Insolvency and Bankruptcy Board of India (IBBI), subject to the condition that no disciplinary proceedings are pending against him. The Tribunal directed the Operational Creditor to pay ?1,00,000 to the IRP for expenses to perform his functions.

4. Application of Moratorium under Section 14 of IBC, 2016:
Upon admitting the application under Section 9(5) of IBC, 2016, the Tribunal imposed a moratorium as per Section 14(1). This moratorium includes:
- The institution or continuation of suits or proceedings against the Corporate Debtor.
- Transferring, encumbering, or disposing of any assets of the Corporate Debtor.
- Actions to foreclose or enforce any security interest.
- Recovery of any property by an owner or lessor.

The moratorium ensures that the Corporate Debtor's operations continue without interruption, and essential goods or services cannot be terminated during this period. The duration of the moratorium lasts until the completion of the Corporate Insolvency Resolution Process (CIRP) or until a resolution plan is approved or liquidation is ordered.

Conclusion:
The Tribunal admitted the application for initiating CIRP against the Corporate Debtor. The Demand Notice was found valid, no pre-existing dispute was substantiated, and an IRP was appointed. The moratorium was imposed to facilitate the CIRP. The Tribunal's order was communicated to all relevant parties and authorities.

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