2017 (10) TMI 357 - Tri - Insolvency and Bankruptcy

Insolvency resolution process - petition under sections 8 and 9 of the Insolvency and Bankruptcy Code, 2016 - dispute raised after service of notice under S.138 of Negotiable Instruments Act - whether the dispute raised by the respondent/corporate debtor comes under the definition of section 5(6) of I&BC, 2016 or not? - Held that - At an undisputed time, the respondent did not raise any challenge against the quality of goods or service. The respondent received the goods, accepted the goods without any protest and tendered payment by way of cheque. The above said conduct of the respondent shows that the dispute raised after service of notice under S.138 of Negotiable Instruments Act was raise with an ulterior motive. It is significant to note that notice under section 138 was issued by the petitioner on 15.06.2016, probably before receiving that notice the above referred letter Annexure-II-G has been issued by the respondent to the petitioner expressing respondent s inability to pay for want of realisation of money from the retailer of the respondent. In the said circumstances, the contentions taken by the respondent that the supply of goods received by them is in violation of the terms of contract is found devoid of any merit. In the above said discussions we are of the considered view that the dispute raised on the side of the respondent is not at all bona fide . Upon the above said discussions we are of a considered view is that the respondent raised the dispute in the instant case is for the sake of objection to see that petition of this nature is to be rejected. No doubts the dispute raised by the respondent does not comes under the purview of Section 5(6) of Insolvency & Bankruptcy Code, 2016. Therefore, we hold that the objections raised by the respondent are unsustainable under law. The petitioner also produced a certificate from the bank confirming that there is no payment of an unpaid debt by the respondent (Annexure-II-R at P. 083). The petitioner also complied section 9(3)(b) of Insolvency & Bankruptcy Code, 2016 (affidavit at Pg. 186). The petition being filed in compliance of sections 8 and 9 of I&BC, 2016 and petitioner succeeded in establishing existence of default it appears to us that this petition is liable to be admitted. The petitioner/operational creditor has also taken the consent of the proposed insolvency professional Mr. Anil Goel, AAA Insolvency Professional, LLPs, E-10 A, Kailash Colony, New Delhi 110048 having registration number - IBBI/IPA-001/IP-P00118/2017-18/10253 who has certified that there is no disciplinary proceedings pending against him and that he is duly empanelled with the IBBI. Therefore, we hereby appoint Mr. Anil Goel as Interim Resolution Professional. In view of the above said discussions this petition for initiating insolvency resolution process is hereby admitted. Moratorium in terms of section 14 of the Code comes into effect.

Summary

Issues Involved:
1. Maintainability of the petition under sections 8 and 9 of the Insolvency and Bankruptcy Code, 2016 (I&B Code, 2016).
2. Alleged breach of contract by the operational creditor.
3. Dispute raised by the corporate debtor regarding the quality and specifications of goods supplied.
4. Existence of default and compliance with procedural requirements under the I&B Code, 2016.

Detailed Analysis:

1. Maintainability of the Petition:
The corporate debtor contended that the petition was not maintainable under section 8(1) of the I&B Code, 2016, due to the operational creditor's failure to produce English translations of certain documents and the incomplete nature of the petition. The Tribunal found these contentions unsustainable as the petitioner had produced legible copies and English translations as directed.

2. Alleged Breach of Contract:
The corporate debtor argued that the operational creditor failed to supply goods as per the specifications in the purchase orders, specifically lacking Test Certificates and Guarantee Certificates, constituting a breach of contract. The Tribunal noted that the corporate debtor received the goods without protest and issued a cheque promising to repay the amount due as per the invoices, indicating acceptance of goods.

3. Dispute Regarding Quality and Specifications:
The corporate debtor claimed that the goods supplied were not as per the terms stipulated in the purchase orders, referring to a disparity between the description in the purchase orders and the invoices. The Tribunal observed that despite the dissimilarity in the description, the corporate debtor accepted the goods and issued cheques, which were later dishonoured. The Tribunal concluded that the dispute raised by the corporate debtor was not bona fide and was raised with an ulterior motive to object to the petition.

4. Existence of Default and Procedural Compliance:
The Tribunal examined the sequence of events and payments made by the corporate debtor, noting that despite partial payments, a significant amount remained unpaid. The Tribunal found that the operational creditor had established the existence of default and had complied with the procedural requirements under sections 8 and 9 of the I&B Code, 2016, including the issuance of a demand notice and obtaining a certificate from the bank confirming non-payment of the debt.

Conclusion:
The Tribunal held that the objections raised by the corporate debtor were unsustainable under law and found that the petition was complete and maintainable. The existence of default was established, and the petition for initiating the insolvency resolution process was admitted. The Tribunal appointed an Interim Resolution Professional and declared a moratorium in terms of section 14 of the I&B Code, 2016, directing the interim resolution professional to take necessary steps as per sections 15, 17, and 18 and file a report within the statutory period.