2022 (11) TMI 504 - Tri - Insolvency and Bankruptcy

Maintainability 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 - HELD THAT - The demand notice sent at registered address of the respondent/corporate debtor, as available on the master data of the corporate debtor, was delivered and tracking report showing its delivery has also been annexed with the petition. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - The petitioner/operational creditor has filed an affidavit dated 06.02.2019 (Annexure P-9) under Section 9(3)(b) of the Code, wherein it has been deposed that after the expiry of the period of ten days from the date of delivery of the demand notice, it has not received any payment from the corporate debtor and further that there is no reply given by the respondent/corporate debtor to a dispute of the unpaid operational debt. Further, it has been deposed that no notice was given by the respondent/corporate debtor relating to the dispute of the unpaid operational debt and has further undertaken that 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. 1379 dated 19.02.2020, and the date of default as is mentioned in Part-IV of Form 5 is 25.01.2019 i.e. the date on which the respondent/corporate debtor assured the petitioner/operational creditor to clear the outstanding amount. 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 and established. Also, there is no rebuttal to the claim filed by the petitioner as respondent/corporate debtor chose not to appear. 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 Involved:
1. Proper service of the demand notice.
2. Dispute of the operational debt by the corporate debtor.
3. Filing of the application within the limitation period.
4. Completeness of the application.
5. Appointment of the Interim Resolution Professional (IRP).
6. Directions for the moratorium and CIRP process.

Issue-wise Detailed Analysis:

1. Proper Service of the Demand Notice:
The tribunal examined whether the demand notice dated 18.12.2019 was properly served. It was found that the notice sent to the registered address of the corporate debtor, as per the master data, was delivered, and the tracking report confirming its delivery was annexed with the petition. Additionally, the demand notice was sent to the directors' personal addresses and via email, all of which were duly delivered.

2. Dispute of the Operational Debt by the Corporate Debtor:
The tribunal considered whether the operational debt was disputed by the corporate debtor. The operational creditor filed an affidavit under Section 9(3)(b) of the Code, stating that after the expiry of ten days from the demand notice delivery, no payment was received, and no dispute was raised by the corporate debtor. It was also affirmed that there was no pre-existing dispute between the parties.

3. Filing of the Application within Limitation:
The tribunal assessed whether the application was filed within the limitation period. The application was filed on 19.02.2020, and the date of default was noted as 25.01.2019. Thus, the tribunal concluded that the application was filed within the limitation period.

4. Completeness of the Application:
The tribunal reviewed the contents of the application filed in Form 5 and found it to be complete. The operational creditor established the debt and default, which was more than the threshold limit of Rupees one lakh. The corporate debtor failed to make the payment of the claimed amount even after the statutory notice, satisfying the conditions under Section 9 of the Code.

5. Appointment of the Interim Resolution Professional (IRP):
Since no IRP was proposed by the petitioner, the tribunal appointed Mr. Chandan Bhatia as the IRP. His credentials were verified, and there was nothing adverse against him. The tribunal directed the IRP to file his written consent in Form-2 within one week and outlined his responsibilities, including taking control and custody of the corporate debtor's assets, making a public announcement, and constituting a Committee of Creditors.

6. Directions for the Moratorium and CIRP Process:
The tribunal directed a moratorium in terms of Section 14 of the Code, which includes:
a) Institution or continuation of suits or proceedings against the corporate debtor.
b) Transferring or disposing of the corporate debtor's assets.
c) Actions to enforce security interests.
d) Recovery of property occupied by the corporate debtor.

The supply of essential goods or services to the corporate debtor shall not be terminated during the moratorium period. The moratorium will be effective until the completion of the CIRP or approval of a resolution plan or liquidation order.

The tribunal also directed the petitioner to deposit Rs. 60,000 with the IRP for immediate CIRP expenses, to be reimbursed by the Committee of Creditors. The petition was allowed and admitted, and the order was communicated to both parties and the IRP.

This comprehensive analysis ensures that all relevant issues are covered thoroughly, preserving the legal terminology and significant phrases from the original judgment.

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