2022 (3) TMI 456 - 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 - HELD THAT - The respondent corporate debtor has admitted its liability to pay the operational debt via letter dated 16.08.2018. The applicant has placed various communications on record showing that the respondent has never raised any compliant regarding claim of applicant. No dispute has ever been raised by the respondent apart from a debit note for a very small amount - the applicant has placed sufficient documents to establish its claim against the corporate debtor. The respondent corporate debtor has not placed any record to show that any dispute was ever pending between the parties before issuance of demand notice under section 8 of IBC. Since the corporate debtor already admitted its liability to clear its debt which is evident from note dated 16.08.2018, the present application is admitted - Application admitted - moratorium declared.

Issues:
1. Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 for Corporate Insolvency Resolution Process initiation.
2. Dispute regarding the debt amount and obligations under the agreement between the parties.
3. Adequacy of documents to establish the claim against the corporate debtor.
4. Appointment of Insolvency Resolution Professional and deposit of funds for expenses.
5. Implementation of moratorium under Section 14 of the Code.

Issue 1: Application under Section 9 of the Insolvency and Bankruptcy Code, 2016

The application was filed by the operational creditor seeking initiation of the Corporate Insolvency Resolution Process against the respondent corporate debtor under Section 9 of the Insolvency and Bankruptcy Code, 2016. The applicant claimed that services worth ?24,41,344 were provided to the respondent, and a demand notice under Section 8 of the Code was duly served. The respondent allegedly admitted the claims of the operational creditor, as evidenced by correspondence and mails. The respondent raised objections against the admission of the petition, citing lack of proof of service, dispute over the debt amount, and non-compliance with the terms of the agreement.

Issue 2: Dispute regarding the debt amount and obligations under the agreement

The respondent disputed the debt amount and obligations under the agreement, claiming that the applicant failed to meet targets and breached the terms of the agreement. The respondent highlighted poor performance by the applicant, warning of contractual breaches and disputing the claims raised. The respondent argued that the applicant did not adhere to the agreement's terms and conditions, and the claim amount exceeded the agreement's scope. The respondent also contended that the applicant failed to provide a mandatory certificate from a financial institution, making the application non-maintainable.

Issue 3: Adequacy of documents to establish the claim against the corporate debtor

The Tribunal examined the documents presented by both parties and found that the applicant had provided sufficient evidence to support its claim against the corporate debtor. The respondent's admission of liability through a letter dated 16.08.2018 was considered significant, along with the absence of any pending disputes between the parties before the demand notice under Section 8 of the Code. The Tribunal referred to the definition of "dispute" as outlined by the Hon'ble Supreme Court and concluded that a genuine dispute did not exist in this case, leading to the admission of the application.

Issue 4: Appointment of Insolvency Resolution Professional and deposit of funds for expenses

The Tribunal appointed an Insolvency Resolution Professional (IRP) for the corporate debtor and directed the applicant to deposit a sum of ?2 lakhs with the IRP to cover expenses. The IRP was appointed subject to certain conditions, and the applicant was instructed to make the deposit within a week. The funds deposited were to be adjusted by the Committee of Creditors and returned to the Operational Creditor as necessary.

Issue 5: Implementation of moratorium under Section 14 of the Code

Following the admission of the application under Section 9(5) of the Code, a moratorium was imposed on the corporate debtor as per Section 14(1), prohibiting certain actions. The terms of Sections 14(2) to 14(4) of the Code were to be enforced during the moratorium period. The Registry was directed to communicate the order to the relevant parties, and compliance reports were to be provided to the Registrar, NCLT and the ROC for necessary updates.

This detailed analysis covers the key issues addressed in the judgment by the National Company Law Tribunal, New Delhi Bench, regarding the application under the Insolvency and Bankruptcy Code, 2016.

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