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2022 (9) TMI 748 - 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 19.02.2022 was properly served? - HELD THAT - The demand notice dated 19.02.2022 was sent through courier on the registered office of the respondent/corporate debtor and the same was delivered on 21.02.2022. Demand notice was also sent through e-mail on 07.03.2022 at the registered e-mail address of the corporate debtor as available on the master data of the MCA. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - The petitioner/operational creditor has filed an affidavit under Section 9(3)(b) of the Code, wherein it has been deposed that the it has not received any reply to the demand notice dated 19.02.2022 and that no notice has been given by the corporate debtor relating to a dispute of the unpaid operational debt and there is no pre-existing dispute between the parties. Whether this application was filed within limitation? - HELD THAT - A perusal of the case file shows that the application was filed vide Diary No.00757 dated 22.04.2022 (refiled on 20.05.2022), whereas the date of default is 17.12.2019, therefore, this Adjudicating Authority finds that this application has been filed within limitation. There is a total unpaid operational debt (in default) of ₹1,35,15,157/-. As noted above, the operational creditor has provided the details of the debt due and has also annexed with the petition copy of ledger account statement, and invoices. Accordingly, the petitioner/operational creditor has established the debt and the default, which is more than Rupees one lakh i.e. the threshold limit - 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. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition for initiation of the CIRP in the case of the corporate debtor, Sarv Awas Housing Bhiwadi Private Limited is admitted. Petition admitted - moratorium declared.
Issues Involved:
1. Whether the demand notice in Form 3 dated 19.02.2022 was properly served. 2. Whether the operational debt was disputed by the corporate debtor. 3. Whether the application was filed within the limitation period. 4. Whether the petition meets the requirements under Section 9 of the Insolvency and Bankruptcy Code, 2016. 5. Appointment and directions for the Interim Resolution Professional (IRP). Issue-wise Detailed Analysis: 1. Proper Service of Demand Notice: The first issue for consideration is whether the demand notice in Form 3 dated 19.02.2022 was properly served. The demand notice was sent through courier to the registered office of the respondent/corporate debtor and was delivered on 21.02.2022. Additionally, the demand notice was sent via e-mail on 07.03.2022 to the registered e-mail address of the corporate debtor as available on the master data of the Ministry of Corporate Affairs (MCA). 2. Dispute of Operational Debt: The next issue for consideration is whether the operational debt was disputed by the corporate debtor. The petitioner/operational creditor filed an affidavit under Section 9(3)(b) of the Code, stating that no reply to the demand notice dated 19.02.2022 was received and no notice has been given by the corporate debtor relating to a dispute of the unpaid operational debt. Therefore, it was concluded that there is no pre-existing dispute between the parties. 3. Application within Limitation: The other issue for consideration is whether this application was filed within the limitation period. The application was filed vide Diary No.00757 dated 22.04.2022 (refiled on 20.05.2022), whereas the date of default is 17.12.2019. Therefore, the Adjudicating Authority found that this application has been filed within the limitation period. 4. Compliance with Section 9 of the Code: The petition was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, read with Rule 6 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The petition was supported by an affidavit and filed in Form 5 as prescribed. The operational creditor provided details of the debt due, including a ledger account statement and invoices, establishing the debt and default, which is more than the threshold limit of Rupees one lakh (pre-revised). The corporate debtor admitted its failure to make payments due to poor financial conditions and confirmed the outstanding amount in its books of accounts dated 10.05.2021. Therefore, the conditions under Section 9 of the Code were satisfied, and the liability of the corporate debtor was undisputed and primarily admitted. 5. Appointment and Directions for Interim Resolution Professional (IRP): Mr. Parminder Singh Bhullar was proposed as the Interim Resolution Professional by the petitioner/operational creditor. Form No. 2 dated 18.04.2022 submitted by the proposed IRP stated that there are no disciplinary proceedings pending against him. The Tribunal appointed Mr. Parminder Singh Bhullar as the Interim Resolution Professional with specific directions: - The term of appointment shall be in accordance with Section 16(5) of the Code. - The powers of the Board of Directors shall stand suspended, and the management of the affairs shall vest with the IRP. - The IRP shall prepare a complete list of inventory of assets of the Corporate Debtor. - The IRP shall act in accordance with the Code and the rules framed thereunder. - The IRP shall cause a public announcement within three days of the initiation of the Corporate Insolvency Resolution Process (CIRP). - The Corporate Debtor, its Directors, personnel, and associated persons shall extend all cooperation to the IRP. - The IRP shall constitute a Committee of Creditors and file a report certifying its constitution within thirty days of his appointment. - The IRP shall send regular progress reports to the Tribunal every fortnight. Conclusion: The petition was found to be complete in all respects and was accordingly allowed and admitted. The Tribunal also directed a moratorium in terms of Section 14 of the Code, which includes the suspension of suits, transfer of assets, and recovery actions against the corporate debtor. The petitioner was directed to deposit an amount of Rs. 80,000 with the IRP to meet the immediate expenses of the CIRP. Copies of the order were to be communicated to both parties and the IRP. This comprehensive analysis covers all relevant issues and preserves the legal terminology and significant phrases from the original judgment.
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