2022 (9) TMI 13 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - services in relation to the freight forwarding of Air Export/Air Import consignment to the corporate debtor - existence of debt and dispute or not - HELD THAT - It is seen that the applicant is part of group company and offering individual solutions for transportations and logistic to the corporate debtor since the year 2007. Since then, the corporate debtor was paying the invoice payments to applicant, but after 17.09.2016 the corporate debtor has committed default in making payments of invoices due to be payable. Pursuant to which, the applicant made several oral and written request to make payment for the unpaid dues. Though, the corporate debtor never raised any dispute nor any objection with regards to the to the quality of services provided by corporate debtor. Relatively, the corporate debtor has made part payments towards running ledger of the goods supplied by the operational creditor. This leaves no doubt that the default has occurred for the payment of the unpaid operational debt to the applicant. It is reiterated that despite service of demand notice and notices by this court no objection has been raised by corporate debtor. The corporate debtor has chose to remain absent - since no objection has ever been raised by corporate debtor, it can be concluded that the applicant has established its claim which is due and payable by the corporate debtor. The present application is admitted. Petition admitted - moratorium declared.

Summary

Issues:
- Application for initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 of IBC 2016 due to alleged default by the Corporate Debtor.
- Failure of the Corporate Debtor to pay outstanding balance for freight forwarding services.
- Lack of appearance by the Respondent, resulting in ex-parte proceedings.
- Appointment of Insolvency Resolution Professional (IRP) and deposit requirement by the applicant.
- Imposition of moratorium as per Section 14 of the Code.

Analysis:
1. The applicant, an operational creditor, filed an application seeking to initiate the CIRP against the Corporate Debtor due to an outstanding balance of Rs. 93,71,138 for freight forwarding services provided. The debt accrued from unpaid invoices, leading to severe financial problems for the Operational Creditor. The Corporate Debtor failed to pay despite repeated requests, indicating insolvency and inability to meet financial commitments.

2. Despite opportunities provided, the Corporate Debtor did not appear, resulting in ex-parte proceedings. The applicant's claim was based on the default in payments post-2016, with no objections raised by the Corporate Debtor regarding the quality of services provided. The absence of any dispute or objection strengthened the applicant's claim for the outstanding debt.

3. The Tribunal found the applicant's claim valid and admitted the application. An Insolvency Resolution Professional (IRP) was appointed, and the applicant was directed to deposit Rs. 2 lakhs with the IRP to cover expenses. The appointment of the IRP was subject to certain conditions, including no pending disciplinary proceedings against them.

4. Following the admission of the application, a moratorium was imposed on the Corporate Debtor as per Section 14 of the Code. The moratorium prohibited actions against the Corporate Debtor during the specified period, with relevant provisions of the Code coming into force. The order was communicated to the applicant, Corporate Debtor, IRP, and regulatory authorities for compliance and record-keeping purposes.