2022 (1) TMI 459 - 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 - HELD THAT - The demand notice was received back undelivered. The same is delivered via e-mail and attached in the main petition at Page Nos. 38-40. Also the service has been done through publication. 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 three weeks to do so nor has corporate debtor entered into appearance. It is pleaded by the operational creditor that no reply has been received to the demand notice dated 15.02.2019 from the corporate debtor. It is also pleaded 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 - The period of limitation would begin from the date of default mentioned in Part IV, Form V i.e. 08.02.2018. This application was filed on 21.05.2019 vide Diary No. 2573. Therefore, this Adjudicating Authority finds that this application was filed within limitation. It is noted that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till date. Thus, the conditions under Section 9 of the Code stand satisfied. It is evident that from the facts that the liability of the corporate debtor is undisputed. Accordingly, the petitioner proved the debt and the default, which is above threshold limit. It is seen that the petition preferred by petitioner 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 petitioner. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition for initiation of the CIR Process in the case of the Corporate Debtor, is admitted - moratorium declared.

Summary

Issues Involved:
1. Proper service of demand notice in Form 3
2. Dispute regarding operational debt by the corporate debtor
3. Timeliness of the application
4. Completeness of the application and proof of debt and default
5. Satisfaction of conditions under Section 9 of the Insolvency and Bankruptcy Code

Analysis:

Issue 1: Proper service of demand notice in Form 3
The demand notice in Form 3 was initially returned undelivered but was later served via email and publication. The Tribunal held that the demand notice was duly served, satisfying the requirement of proper service.

Issue 2: Dispute regarding operational debt by the corporate debtor
The corporate debtor did not file a reply to the petition or enter appearance, indicating no dispute regarding the unpaid operational debt. The absence of a reply or representation implied no dispute existed between the parties, fulfilling the condition of undisputed debt.

Issue 3: Timeliness of the application
The application was filed within the limitation period as the demand notice was properly served, and no reply or payment was received from the corporate debtor. The application was filed within the statutory time frame from the date of default, meeting the requirement of timeliness.

Issue 4: Completeness of the application and proof of debt and default
The petition filed in Form 5 was found to be complete, demonstrating an unpaid operational debt of ?2,01,807. Supporting documents, including invoices, ledger accounts, and interest calculations, substantiated the debt claim, fulfilling the requirements for proving debt and default.

Issue 5: Satisfaction of conditions under Section 9 of the Insolvency and Bankruptcy Code
The corporate debtor failed to make the payment mentioned in the statutory notice, meeting the conditions under Section 9 of the Code. The liability of the corporate debtor was deemed undisputed, leading to the admission of the petition for the initiation of the Corporate Insolvency Resolution Process.

The Tribunal admitted the petition, directing the initiation of the Corporate Insolvency Resolution Process for the Corporate Debtor. A moratorium was declared, suspending legal actions against the debtor and appointing an Interim Resolution Professional. The Interim Resolution Professional was tasked with managing the debtor's affairs, preparing asset inventories, and convening the Committee of Creditors. The petitioner was instructed to deposit funds for CIRP expenses. The Tribunal's decision was communicated to both parties and the Interim Resolution Professional promptly.