2022 (8) TMI 475 - 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 - whether the demand notice in Form 3 dated 29.04.2019 was properly served? - HELD THAT - The petitioner has placed a tracking report, whereunder it was stated that the speed post was delivered to the corporate debtor and no reply to that has been received. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - It is to be noted that none appeared on behalf of the corporate debtor despite repeated service and has been set ex parte vide order dated 11.02.2020. Moreover, the petitioner has appended affidavit u/s 9(3)(b) stating that there is no reply to the demand notice and the corporate debtor has not cleared the outstanding dues for which the present petition has been filed by the operational creditor. Whether this application is filed within limitation? - HELD THAT - This application was filed on 05.07.2019 vide Diary No.3220 Whereas the date of default is 06.11.2018, therefore, this Adjudicating Authority finds that this application has been filed within limitation. There is a total unpaid operational debt (in default) of ₹19,00,356/-. The operational creditor has supplied goods to the corporate debtor and raised invoices attached as Annexure F. Accordingly, the petitioner proved the debt and the default, which is more than Rupees one lakh (prior to the amendment in threshold limit of one crore vide notification No. S.O.1205(E) dated 24.03.2020) by the respondent-corporate debtor - It is seen that the petition preferred by the petitioner is complete in all respects. 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. Petition admitted - moratorium declared.

Summary

Issues:
1. Proper service of the demand notice in Form 3 dated 29.04.2019.
2. Dispute of operational debt by the corporate debtor.
3. Filing of the application within limitation.

Detailed Analysis:
1. The first issue for consideration is the service of the demand notice in Form 3 dated 29.04.2019. The petitioner provided a tracking report confirming the delivery of the speed post to the corporate debtor without any reply received, indicating proper service.
2. The next issue is whether the operational debt was disputed by the corporate debtor. Despite repeated service, the corporate debtor did not appear and was set ex parte. Additionally, the petitioner submitted an affidavit under section 9(3)(b) stating no reply to the demand notice and outstanding dues, supporting the undisputed nature of the debt.
3. Another issue involves the timeliness of the application filing. The application was filed on 05.07.2019, within the limitation period, considering the default date of 06.11.2018, meeting the requirements set by the Adjudicating Authority.

Further Details:
The judgment detailed the incorporation of the Corporate Debtor on 12.06.2014 under the Companies Act, 2013, establishing territorial jurisdiction. The petitioner supplied goods to the Corporate Debtor, leading to unpaid operational debt of Rs. 19,00,356/-, supported by invoices and bounced cheque evidence. The Adjudicating Authority found the debt and default proven, satisfying the conditions under Section 9 of the Insolvency and Bankruptcy Code, 2016.

The judgment admitted the petition for initiation of the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. It directed the appointment of an Interim Resolution Professional, suspended the powers of the Board of Directors, and imposed a moratorium on certain actions. The Interim Resolution Professional was tasked with managing the affairs of the Corporate Debtor, constituting a Committee of Creditors, and providing regular progress reports to the Tribunal.

Additionally, the petitioner was instructed to deposit a specific amount with the Interim Resolution Professional for immediate CIRP expenses. The judgment concluded by communicating the order to both parties and the Interim Resolution Professional, allowing and admitting the petition accordingly.