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2024 (10) TMI 1353 - Tri - IBCMaintainability of section 7 application - initiation of CIRP - existence of debt and default on the part of the Corporate Debtor - HELD THAT - There is a disbursement against the consideration for time value of money and there is a clause for payment of interest. Further, the documents furnished show that it is receivables discounting with recourse basis. Thus, receivables sold under recourse basis will constitute a financial debt as per Section 5 (8)(e) of IBC Act. It has been held by the Hon ble Supreme Court in M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK ANR. 2017 (9) TMI 58 - SUPREME COURT as well as in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED 2017 (9) TMI 1270 - SUPREME COURT after going through the Scheme of IBC, 2016 in depth in relation to an Application under Section 7 filed by a Financial Creditor as compared to the one filed under Section 9 by an Operational Creditor, that in relation to a Section 7 Application where there is an existence of a financial debt and the default in excess of Rs. 1,00,00,000/-, this Tribunal is bound to admit the Application and as a consequence trigger the Corporate Insolvency Resolution Process (CIRP) and in relation to a Section 7 Application defence of set off or counter claim put forth by the Corporate Debtor cannot be considered as a dispute in relation to the Financial debt and default in relation to it. In the present case, it is clear that there is a default on the part of the Corporate Debtor for a sum exceeding Rs. 1 Crore. The Applicant / Financial Creditor has proved that there is a debt and default on the part of the Corporate Debtor and hence in term of Section 7(5) of IBC, 2016, the present application is required to be admitted and Corporate Insolvency Resolution Process as against the Corporate Debtor is required to be initiated. Application admitted - moratorium declared.
Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 7 of the Insolvency and Bankruptcy Code (IBC), 2016. 2. Existence of financial debt and default by the Corporate Debtor. 3. Appointment of Interim Resolution Professional (IRP). 4. Imposition of moratorium under Section 14 of the IBC, 2016. Detailed Analysis: 1. Initiation of Corporate Insolvency Resolution Process (CIRP) The Financial Creditors, comprising Ms. Apurva Jain and 10 others, filed an application under Section 7 of the IBC, 2016, seeking to initiate CIRP against the Corporate Debtor, M/s. Adaptio Facility Management Private Limited. The application was based on the claim that the Corporate Debtor defaulted on a financial debt, which was part of a bill discounting arrangement facilitated through an online portal, "KredX," operated by Minions Ventures Pvt. Ltd. 2. Existence of Financial Debt and Default The Financial Creditors claimed that they advanced a total sum of Rs. 1,08,83,596.95 to the Corporate Debtor under a bill discounting arrangement. The arrangement involved a tripartite Agreement for Transfer of Rights, where the Corporate Debtor raised invoices on an enterprise, and the Creditors provided discounted payments. The enterprise was supposed to pay the full invoice value into an escrow account, but defaulted, leading to the Corporate Debtor's liability to refund the consideration to the Creditors. The cheques issued by the Corporate Debtor for this purpose were dishonored, indicating insolvency. The Financial Creditors provided various documents, including a Bank Confirmation Agreement, Seller Services Agreement, invoices, and a Record of Default by NeSL, to substantiate their claim. The Tribunal found that the receivables sold under a recourse basis constituted a financial debt as per Section 5(8)(e) of the IBC, 2016. The Tribunal also noted that the default amount exceeded Rs. 1 Crore, meeting the threshold for initiating CIRP. 3. Appointment of Interim Resolution Professional (IRP) The Financial Creditors proposed Ms. Satyadevi Alamuri as the IRP, who had filed her consent and held valid authorization. The Tribunal appointed her as the IRP and directed her to take charge of the Corporate Debtor's management immediately. The IRP was instructed to make a public announcement and call for submissions of claims by creditors as per the regulations. 4. Imposition of Moratorium Upon admission of the application, a moratorium under Section 14 of the IBC, 2016, was imposed. This moratorium prohibits the institution or continuation of suits, transferring or disposing of assets, and recovery actions against the Corporate Debtor. The Tribunal clarified that essential goods or services to the Corporate Debtor should not be terminated during the moratorium. The moratorium will remain in effect until the completion of the CIRP or until a resolution plan is approved or liquidation is ordered. In conclusion, the Tribunal admitted the application for CIRP against the Corporate Debtor, appointed an IRP, and imposed a moratorium, marking the initiation of the insolvency resolution process as per the provisions of the IBC, 2016.
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