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2022 (5) TMI 990 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Service of demand notice - HELD THAT - The Respondent fabricated the documents later on just to make out a defence that it has intimated to Mr. Vivek Goel that the articles were defective in nature. From the above said facts and circumstances, it is established that there was no genuine pre-existence dispute between the Operational Creditor and the Corporate Debtor. Service of demand notice - HELD THAT - It is apparent that there is a email sent on 26.11.2018 by Karin Palmetshofer to Mr. Vivek Goel and copy to Christoph Merkens, whereby Mr. Abhishek Anand, Advocate was authorized to issue demand notice to Franco Leone Limited. Merely, that the General Power of Attorney has been executed in favour of the Mr. Pawan Kumar on 24.01.2019 does not mean that the Mr. Abhishek Anand was never authorized - Mr. Abhishek Anand was duly authorized to send a demand notice to the respondent/Corporate Debtor on behalf of the applicant herein; accordingly, the demand notice was valid and legal one. Therefore, the contention raised on behalf of respondent that demand notice was defective in nature stands discarded. The present application under Section 9 of the code stands accepted - Moratorium declared.
Issues Involved:
1. Default in payment by Corporate Debtor. 2. Existence of dispute regarding the quality of goods supplied. 3. Authorization of demand notice by Mr. Abhishek Anand. 4. Appointment of Insolvency Resolution Professional (IRP). 5. Implementation of moratorium under Section 14 of IBC. Detailed Analysis: 1. Default in payment by Corporate Debtor: The application was filed by the Operational Creditor under Section 9 of IBC 2016 to initiate CIRP against the Corporate Debtor for an outstanding balance of Rs. 12,21,663.65/-. The Operational Creditor supplied insole boards and shank boards to the Corporate Debtor and issued Invoice No. 423777 dated 02.02.2017. Despite reminders, the Corporate Debtor failed to make the payment. The demand notice under Section 8 of the code was sent on 28.11.2018, but the Corporate Debtor did not respond. 2. Existence of dispute regarding the quality of goods supplied: The Corporate Debtor claimed that the goods were purchased through an agent, Mr. Vivek Goel, and there were quality issues with the supplied goods. The Corporate Debtor raised a dispute on 15.03.2018 and claimed Rs. 4,04,155/- for defective goods. However, the Tribunal found that the dispute was raised after a year of receiving the goods and was communicated to Mr. Vivek Goel instead of the Operational Creditor. The Tribunal concluded that the dispute was an afterthought and manipulated to avoid payment. 3. Authorization of demand notice by Mr. Abhishek Anand: The Corporate Debtor contended that the demand notice sent by Mr. Abhishek Anand was unauthorized. However, the Tribunal noted an email dated 26.11.2018 authorizing Mr. Abhishek Anand to issue the demand notice. The Tribunal referred to the citation Macquaire Bank Limited (Singapore), establishing that an advocate can act on behalf of a party. Hence, the demand notice was deemed valid and legal. 4. Appointment of Insolvency Resolution Professional (IRP): The Tribunal accepted the application under Section 9 of the code and appointed Mr. Vijender Sharma as the IRP. His registration number and email ID were provided, and he had given written consent in the required Form-2. 5. Implementation of moratorium under Section 14 of IBC: Upon admitting the application, the Tribunal directed the implementation of a moratorium as per Section 14(1) of IBC, prohibiting actions against the Corporate Debtor as per proviso (a) to (d) of the Code. The Tribunal also instructed the applicant to deposit Rs. 2 lacs with the IRP for expenses. Conclusion: The Tribunal concluded that there was no genuine pre-existing dispute between the Operational Creditor and the Corporate Debtor. The application under Section 9 was accepted, and Mr. Vijender Sharma was appointed as the IRP. The moratorium was imposed, and necessary directions were issued for compliance.
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