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2022 (9) TMI 1346 - 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 - service of demand notice duly done, but outstanding amount not paid by Operational creditor, nor any reply to demand notice was done - HELD THAT - It is noted that the Operational Creditor supplied the electricity to the Corporate Debtor in the month of April to June and raised 8 invoices for an amount of Rs.1,59,25,360/- .The Corporate Debtor served the demand notice dated 21.10.2019 issued on 22.10.2019 and the same was delivered on 28.10.2019 to the Corporate Debtor. But the Corporate Debtor neither replied to the Demand Notice nor paid the outstanding amount to the Operational Creditor. As per the statement given by the PGVCL for the credited units, all the units are credited after the deduction of transmission loss and wheeling loss units. A total of 26,60,401 units have been credited by the PGVCL and the Operational Creditor raised eight invoices of Rs. 1,59,25,360/-. The Corporate Debtor claimed that an amount of Rs. 1,31,82,987/- has been paid. As per the ledger account from 01.04..2015 to 14.10.2019 more than Rs. 23,00,000/- is still due and payable by the Corporate Debtor to the Operational Creditor. It is not a disputed fact that the Corporate Debtor has not raised any disputes with respect to the invoices raised by the Operational Creditors. Moreover, Corporate Debtor vide letter dated 26.09.2017 itself admitted that Rs. 67,65,986/- has been withheld on account of gross subsidy charges, additional surcharge and electricity supplied. The present application is defect free as per section 9 (5) of the IB Code, and the outstanding amount meets the threshold limits as section 4 of the IB Code - Application admitted - moratorium declared.
Issues Involved:
1. Outstanding payment due from the Corporate Debtor. 2. Limitation period for the claim. 3. Pre-existing dispute regarding the debt. 4. Admissibility of the application under Section 9 of the Insolvency and Bankruptcy Code, 2016. 5. Appointment of Interim Resolution Professional (IRP) and initiation of Corporate Insolvency Resolution Process (CIRP). Detailed Analysis: 1. Outstanding Payment Due from the Corporate Debtor: The Operational Creditor, M/s. Bhadreshwar Vidyut Private Limited, supplied electricity to the Corporate Debtor, M/s. Max Granito Private Limited, and raised invoices totaling Rs.1,59,25,359.82/- for April, May, and June 2015. Despite repeated requests, the Corporate Debtor failed to pay an outstanding amount of Rs.64,51,107/-. The Corporate Debtor claimed that it had already paid Rs.1,31,82,987/- and that an excess amount of Rs.8,44,200/- was paid, which needed to be recovered. However, the Operational Creditor's ledger indicated that more than Rs.23,00,000/- was still due. 2. Limitation Period for the Claim: The Corporate Debtor argued that the claim was barred by limitation, as the last invoice was raised on 01.07.2015, beyond the three-year limitation period. However, the Tribunal noted that the Corporate Debtor had acknowledged an amount of Rs.67,65,986/- as of 31.03.2017 in a letter dated 26.09.2017, thus resetting the limitation period. Therefore, the claim was deemed not time-barred. 3. Pre-existing Dispute Regarding the Debt: The Corporate Debtor contended that there was no amount due and that the claim was an attempt to recover money through arm-twisting. They also mentioned that the Operational Creditor failed to establish the units of electricity for which invoices were raised. However, the Tribunal found no pre-existing dispute, as the Corporate Debtor had not raised any disputes regarding the invoices and had acknowledged the debt in 2017. 4. Admissibility of the Application under Section 9 of the Insolvency and Bankruptcy Code, 2016: The Tribunal examined whether the application was complete and whether the Corporate Debtor had defaulted in payment despite receiving a demand notice. The Operational Creditor had served a demand notice on 21.10.2019, which the Corporate Debtor did not respond to or pay the outstanding amount. The Tribunal found the application to be defect-free and meeting the threshold limits under Section 4 of the IB Code. 5. Appointment of Interim Resolution Professional (IRP) and Initiation of Corporate Insolvency Resolution Process (CIRP): The Tribunal admitted the application under Section 9 of the IB Code and initiated the CIRP against the Corporate Debtor. A moratorium under Section 14 of the IB Code was declared, prohibiting suits, asset transfers, and other actions against the Corporate Debtor. Mr. Dakshesh Pravinchandra Choksi was appointed as the IRP to conduct the CIRP. The IRP was directed to make a public announcement, call for claims, and manage the Corporate Debtor as a going concern. The Operational Creditor was instructed to pay an advance of Rs.50,000/- to the IRP for the CIRP's smooth conduct. Conclusion: The Tribunal allowed the application, initiating the CIRP against the Corporate Debtor, and appointed an IRP to oversee the process. The Corporate Debtor's arguments regarding limitation and pre-existing disputes were rejected, and the outstanding debt was acknowledged based on the evidence provided. The order emphasized the need for cooperation from the Corporate Debtor's personnel and the continuation of essential services during the moratorium period.
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