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2022 (11) TMI 457 - Tri - Insolvency and BankruptcyMaintainability of petition - 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 23.11.2020 was properly served? - HELD THAT - The petitioner has placed a tracking report, whereunder it was stated that the speed post was delivered to the corporate debtor and no reply to that has been duly received. 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 and had been set ex parte vide order dated 21.12.2021. Moreover, the petitioner has appended an affidavit u/s 9(3)(b) of Insolvency and Bankruptcy Code,2016 stating that the operational creditor served Demand Notice dated 23.11.2020 to the Corporate Debtor as per the provisions of Section 9 of IBC, 2016. There was no notice given by the Corporate Debtor relating to the dispute of unpaid Operational Debt. Whether this application is filed within limitation? - HELD THAT - This application was filed on 12.08.2021 vide Diary No.00968. Whereas the date of default is 23.04.2019 as per last transaction, therefore, this Adjudicating Authority finds that this application has been filed within limitation. Threshold limit of debt involved - HELD THAT - There is a total unpaid operational debt (in default) of Rs. 1,01,12,899/-. The operational creditor was supplying TMT to the corporate debtor on a running account basis and raised invoices attached as Annexure A-5. Accordingly, the petitioner proved the debt and the default, which is more than Rupees one crore - 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. In the present petition, all the requirements have been satisfied. 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 deserves to be admitted. Petition admitted - moratorium declared.
Issues:
1. Proper service of demand notice 2. Disputed operational debt by the corporate debtor 3. Timeliness of the application Analysis: Issue 1: Proper service of demand notice The petitioner provided a tracking report showing delivery of the demand notice via speed post to the corporate debtor. As no reply was received, the Tribunal found that the demand notice was properly served. Issue 2: Disputed operational debt by the corporate debtor The corporate debtor did not appear, leading to an ex-parte order. The petitioner submitted an affidavit stating that the demand notice was served as per Section 9 of the IBC, and no notice disputing the debt was received from the corporate debtor. Thus, the operational debt was deemed undisputed. Issue 3: Timeliness of the application The application was filed within the limitation period, as it was submitted on 12.08.2021, while the default date was 23.04.2019. The Tribunal concluded that the application was timely. The petitioner proved the debt and default exceeding one crore rupees, leading to the satisfaction of conditions under Section 9 of the Code. Consequently, the Tribunal admitted the petition for initiating the CIR Process for the corporate debtor and imposed a moratorium. The Tribunal appointed an Interim Resolution Professional (IRP) and directed the suspension of the Board of Directors' powers. The IRP was tasked with managing the affairs of the corporate debtor, preparing an inventory of assets, and ensuring compliance with the Code and ethical standards. Additionally, the IRP was instructed to convene a Committee of Creditors, provide progress reports, and manage immediate expenses for the CIRP. The petitioner was directed to deposit a specified amount with the IRP for CIRP expenses, to be reimbursed by the Committee of Creditors. The order was communicated to all parties involved, and the petition was admitted by the Tribunal.
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