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2021 (12) TMI 738 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dues or not - HELD THAT - There is clear acknowledgement of debt by the corporate debtor in email dated 15.12.2018 annexed as Annexure-P9 (Colly) with the petition. It is also pertinent to take a note that the Notification regarding the enhancement of minimum amount of default to Rs. one crore for the purpose of Section 4 was issued by the Ministry of Corporate Affairs on 24th March, 2020 and the amount defaulted by the Corporate Debtor is much before the coming into effect of notification dated 24th March, 2020. Since any notification issued by the Government is generally prospective in nature unless specifically expressed, hence the said notification is not applicable to the present case. This Tribunal is inclined to admit this application and accordingly initiate the process of CIRP of the Corporate Debtor - Application admitted - moratorium declared.
Issues:
Initiation of Corporate Insolvency Resolution Process under Section 9 of IBC, 2016 based on non-payment of debt by the Corporate Debtor. Detailed Analysis: 1. Operational Creditor's Petition: The Operational Creditor sought initiation of Corporate Insolvency Resolution Process against the Corporate Debtor for non-payment of debt amounting to ?27,49,090. The Operational Creditor alleged that the Corporate Debtor had stopped making payments for supplied goods, used the materials for profit, and avoided responding to demands and notices. 2. Ex-Parte Proceeding: Despite opportunities given to the Corporate Debtor to raise objections, no representation was made on their behalf. The Tribunal proceeded ex-parte against the Corporate Debtor, noting intentional avoidance of proceedings by the Corporate Debtor. 3. Acknowledgment of Debt: The Operational Creditor presented an email as evidence where the Corporate Debtor acknowledged the debt. The Tribunal considered this acknowledgment, along with the fact that the default amount predated the notification regarding the minimum default amount, in deciding to admit the application and initiate the Corporate Insolvency Resolution Process. 4. Appointment of Interim Resolution Professional: The Tribunal appointed an Insolvency Professional as the Interim Resolution Professional to manage the Corporate Debtor's affairs. The IRP was directed to take immediate charge, make public announcements, and call for claim submissions as per the Insolvency and Bankruptcy Code, 2016. 5. Moratorium and Prohibitions: A moratorium was declared from the order date until the completion of the Corporate Insolvency Resolution Process. Various prohibitions were imposed, including instituting suits, transferring assets, enforcing security interests, and recovering properties from the Corporate Debtor. 6. Continuation of Essential Services: Essential goods or services supplied to the Corporate Debtor were not to be terminated during the moratorium period. The IRP was required to comply with specific sections of the Code, and directors and management associated with the Corporate Debtor were mandated to cooperate with the IRP. 7. Financial Obligations: The Operational Creditor was directed to pay a sum to the Interim Resolution Professional to cover necessary expenses. Additionally, the Operational Creditor was instructed to provide a copy of the order to the IRP promptly for compliance. 8. Regulatory Compliance: The Registry was directed to inform the Registrar of Companies about the order for updating the Corporate Debtor's status in the MCA database. The order was pronounced in a virtual hearing by the Adjudicating Authority.
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