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2022 (9) TMI 537 - 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 - time limitation - service of demand notice - whether the demand notice in Form 3 dated 23.04.2019 was properly served? - HELD THAT - The petitioner has placed a copy of the registered postal receipts, proof of email which was delivered to the corporate debtor. 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 16.03.2022. Moreover, the petitioner has appended affidavit u/s 9(3)(b) stating that there is no reply to the demand notice, the corporate debtor has not cleared the outstanding dues and the corporate debtor has not raised any dispute regarding the amount due. Thus, there is no pre-existing dispute between the parties. Whether this application is filed within limitation? - HELD THAT - This application was filed on 21.08.2019 vide Diary No.4242. Whereas the date of default is 10.11.2017, therefore, this Adjudicating Authority finds that this application has been filed within limitation. It is noted that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till date. Thus, the conditions under Section 9 of the Code stand satisfied. It is evident from the above-mentioned facts that the liability of the corporate debtor is undisputed. Accordingly, the petitioner proved the debt and the default which is above threshold limit. 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. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition is liable to be admitted - petition admitted - moratorium declared.
Issues:
1. Jurisdiction of the Adjudicating Authority 2. Validity of demand notice and service 3. Disputed operational debt 4. Timeliness of the application 5. Satisfaction of conditions under Section 9 of the Insolvency and Bankruptcy Code, 2016 6. Appointment of Interim Resolution Professional 7. Moratorium and directions issued Jurisdiction of the Adjudicating Authority: The Tribunal, in a case filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, considered the territorial jurisdiction as the Corporate Debtor was incorporated within its jurisdiction. The Tribunal noted the master data of the Corporate Debtor and established its territorial connection with the Adjudicating Authority. Validity of demand notice and service: The Tribunal examined the service of the demand notice in Form 3 dated 23.04.2019 to the Corporate Debtor. It found that the notice was properly served through registered postal receipts and email, as evidenced by the proof of delivery provided by the petitioner. Disputed operational debt: The Tribunal observed that despite repeated service, the Corporate Debtor did not appear and was set ex parte. The petitioner affirmed in an affidavit that the debt was not disputed by the Corporate Debtor, as no reply was received to the demand notice, outstanding dues remained unpaid, and no dispute was raised regarding the amount due. Timeliness of the application: The Tribunal confirmed that the application was filed within the limitation period, as it was submitted on 21.08.2019, while the default occurred on 10.11.2017, satisfying the requirement of timeliness under the Code. Satisfaction of conditions under Section 9 of the Code: After reviewing the complete application and supporting documents, the Tribunal found that the operational debt of Rs. 45,61,327/- was proven by the petitioner, and the default by the Corporate Debtor was established, meeting the conditions under Section 9 of the Code. Appointment of Interim Resolution Professional: The Tribunal appointed Mr. Alok Kumar Agarwal as the Interim Resolution Professional, directing him to manage the affairs of the Corporate Debtor in accordance with the Code. Specific directions were issued regarding the suspension of the Board of Directors' powers and the conduct of the Corporate Insolvency Resolution Process. Moratorium and directions issued: The Tribunal admitted the petition for initiation of the Corporate Insolvency Resolution Process, directing a moratorium on certain actions and appointing the Interim Resolution Professional to oversee the process. Specific directions were given regarding the management of assets, cooperation from involved parties, constitution of the Committee of Creditors, and regular progress reporting to the Tribunal. This detailed analysis of the judgment provides insights into the Tribunal's considerations and decisions on various issues raised in the case.
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