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2022 (1) TMI 1179 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - services provided by the Operational Creditor to Corporate Debtor - existence of debt and dispute or not - Service of demand notice - HELD THAT - As per Section 8(2) of the IBC, 2016, the Corporate Debtor had to bring the existence of any dispute if any or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice of the Operational Creditor within 10 days of receipt of such notice i.e. 25.11.2019. But the Corporate Debtor sent the reply to the demand notice to the Operational Creditor on 28.12.2019, which is beyond the stipulated time period. Therefore, the said letter would not be considered as notice sent by the Corporate Debtor to the Operational Creditor showing the existence of any dispute or record of the pendency of the suit of arbitration proceedings filed before the receipt of such notice as per the IBC, 2016. Pre-existing dispute - HELD THAT - Corporate Debtor has failed to satisfy that there is a pre-existing dispute. The mails which the corporate debtor is annexing is with respect to the rejection of the reports, which operational Creditor has resubmitted but Corporate debtor has concealed the fact of resubmission. As per the clauses mentioned in the Purchase order, for every failed report, Corporate debtor is entitled for resubmission and if there is delay in resubmission, there are provisions of Penalty which according to us does not negates the existence of default and Operational Creditor has sufficiently placed all the records, accounts, bank statements, invoices raised and summary of outstanding dues and establishes the existence of default as per the provisions of Section 9 of the IBC, 2016. The Application is complete in respect of Sec. 9(5)(i) of the provisions of Insolvency and Bankruptcy Code, 2016 and liable to be ADMITTED. Application admitted - moratorium declared.
Issues Involved:
1. Non-payment of dues by the Corporate Debtor. 2. Alleged pre-existing dispute regarding the quality and delay of services. 3. Legal notice and demand notice discrepancies. 4. Compliance with Section 8 and Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC). Issue-wise Detailed Analysis: 1. Non-payment of dues by the Corporate Debtor: The Operational Creditor, M/s. Datacorp Traffic Private Limited, filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, seeking initiation of Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, VaaaN Infra Private Limited, for non-payment of dues amounting to ?3,97,17,481/- for services provided. The Corporate Debtor had engaged the Operational Creditor for conducting ATCC traffic surveys in Gujarat and Maharashtra, with payment terms stipulating amounts payable within 60 days from the date of invoice submission. 2. Alleged pre-existing dispute regarding the quality and delay of services: The Corporate Debtor argued that there was a pre-existing dispute regarding the quality of services and delays in providing them, which was communicated before the demand notice. They cited letters and emails indicating issues with the survey reports and delays in their submission, which affected their business with IHMCL. The Operational Creditor countered that resubmitted reports were accepted by the Corporate Debtor, and any penalties for delays were limited to ?1,10,000/-. The Tribunal found that the Corporate Debtor failed to prove a pre-existing dispute as the Operational Creditor had resubmitted the reports, and the penalties did not negate the existence of default. 3. Legal notice and demand notice discrepancies: The Corporate Debtor highlighted discrepancies between amounts claimed in earlier legal notices and the demand notice. However, the Tribunal noted that the demand notice was aimed at seeking repayment of the default amount, and the Corporate Debtor had acknowledged an amount of ?1,93,23,609/- in its reply to the legal notice, subject to proper account statements. The Tribunal found that the Operational Creditor had provided sufficient documentation to establish the existence of default. 4. Compliance with Section 8 and Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC): The Tribunal examined compliance with Sections 8 and 9 of the IBC. The Corporate Debtor was required to notify any dispute within 10 days of receiving the demand notice but failed to do so within the stipulated period. The Tribunal emphasized that the Corporate Debtor's reply to the demand notice was beyond the 10-day period, rendering it ineffective in proving a pre-existing dispute. The Tribunal found the application complete as per Section 9(5)(i) of the IBC, 2016, and admitted the application, initiating the Corporate Insolvency Resolution Process against the Corporate Debtor. Conclusion: The Tribunal admitted the application for initiating CIRP against the Corporate Debtor, imposing a moratorium as per Section 14 of the IBC, 2016. Mr. Satya Prakash was appointed as the Interim Resolution Professional (IRP), and the Operational Creditor was directed to deposit ?1 lakh to cover immediate IRP expenses. Copies of the order were directed to be sent to both parties and the IRP.
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