2022 (9) TMI 947 - 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 03.02.2020 was properly served? - HELD THAT - The demand notice was received as per tracking report mentioned at Page No. 51 of the main petition and through e-mail on 24.02.2020 (Annexure A-6). In view of the same, it is held that the demand notice has been duly served. However, reply was received to the demand notice sent through e-mail, whereby the corporate debtor admits the liability by stating, to close the project as it is where basis and to excuse from the payments as they do not have sufficient funds. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - It is deposed by petitioner that the operational creditor affirms that the corporate debtor has not given any notice raising dispute relating to the unpaid amount of operational debt as claimed in the application. The same has been inferred from the affidavit in terms of Section 9(3)(b) of I B Code, 2016. The affidavit is attached with the main petition from page 59 to 61. It implies that there is no pre-existing dispute in relation to the debt claimed as per Part IV of Form 5. Moreover, the corporate debtor in its reply stated that the amount claimed is not denied and the respondent is not in a position to repay the debt in question. Therefore it is evident from above that the present petition is of admitted liability. Whether this application is filed within limitation? - HELD THAT - A demand notice issued dated 03.02.2020 in Form 3 attached as Annexure A-5 was duly served on the corporate debtor through speed post delivered on 29.02.2020. It is to be noted that the period of limitation would begin from the date of default i.e. 13.09.2019. This application was filed on 13.03.2020 and refiled on 02.11.2020 vide Diary No. 2002. Therefore, this Adjudicating Authority finds that this application is 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 that from the above mentioned facts that the liability of the corporate debtor is undisputed as it is stated by respondent/corporate debtor in its reply that due to adverse financial conditions. Thus, the respondent-corporate debtor has admitted its liability. Accordingly, the petitioner proved the debt and the default. 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 is admitted. Petition admitted - moratorium declared.

Summary

Issues Involved:
1. Proper service of demand notice.
2. Dispute over operational debt.
3. Filing within the limitation period.
4. Satisfaction of conditions under Section 9 of the Insolvency and Bankruptcy Code (IBC), 2016.

Issue-wise Detailed Analysis:

1. Proper Service of Demand Notice:
The first issue for consideration was whether the demand notice in Form 3 dated 03.02.2020 was properly served. The tribunal found that the demand notice was duly served as per the tracking report and through email on 24.02.2020. The corporate debtor acknowledged receipt by replying via email, admitting the liability and requesting to excuse the payments due to insufficient funds.

2. Dispute Over Operational Debt:
The next issue was whether the operational debt was disputed by the corporate debtor. The tribunal noted that the operational creditor affirmed no notice was given by the corporate debtor raising any dispute related to the unpaid amount. The affidavit in terms of Section 9(3)(b) of the IBC, 2016, implied no pre-existing dispute. The corporate debtor admitted the debt and its inability to repay it due to financial difficulties, making the liability undisputed.

3. Filing Within the Limitation Period:
The tribunal examined whether the application was filed within the limitation period. The demand notice dated 03.02.2020 was served on 29.02.2020, and the period of limitation began from the date of default, i.e., 13.09.2019. The application was filed on 13.03.2020 and refiled on 02.11.2020, thus falling within the limitation period.

4. Satisfaction of Conditions Under Section 9 of the IBC:
The tribunal reviewed the contents of the application and found it complete. The unpaid operational debt of Rs. 21,13,000/- was proven with attached invoices and an agreement. The corporate debtor failed to make payment even after the statutory notice, satisfying the conditions under Section 9 of the IBC. The tribunal admitted the petition for initiation of the Corporate Insolvency Resolution Process (CIRP) against the corporate debtor.

Conclusion:
The tribunal declared a moratorium under Section 14 of the IBC, preventing any suits or proceedings against the corporate debtor and restricting the transfer or disposal of its assets. The manufacturing of clothing and textiles by the corporate debtor was not to be interrupted during the moratorium period. An Interim Resolution Professional (IRP), Mr. Jaramu Ram Thakur, was appointed with specific directions to manage the corporate debtor's affairs, constitute a Committee of Creditors, and provide regular progress reports. The petitioner was directed to deposit Rs. 75,000/- to meet immediate CIRP expenses. The petition was allowed and admitted, and a copy of the order was communicated to both parties and the IRP.