2018 (6) TMI 1260 - Tri - Insolvency and Bankruptcy

Corporate Insolvency Resolution Process - Whether there is an existing dispute between the parties before the present petition filed under I&B Code, 2016 - Held that - There is no document to prove that there was a dispute between the parties, therefore while answering Issue (i) - as conclude that the there is not any dispute between the Applicant and the Respondent in relation to the above said transaction. Issue (ii) - With regard to the application of principle of Res-Judicata to the present proceedings, it is on record that the Applicant has filed a winding up petition before the High Court and the same was transferred to this Tribunal on its constitution. It is also on record that on the failure of the Applicant (the petitioner therein) in submitting required information, the petition was abated as per the notification of Ministry of Corporate Affairs No. GSR 732(E) dated 29.06.2017 and in the same notification the parties are given liberty to file fresh petition under I & B Code, 2016, therefore, the submission that the principle of Res-Judicata is applicable to the present proceeding is unsustainable. Issue (iii) - With regard to the submissions of applicability of limitation to the present proceedings, it is on record that the Applicant has issued demand notice dated 24.05.2017 and thereafter the Respondent raised the dispute. In considered view, the notice has been issued within the period of three years of limitation i.e. from 13.08.2014, and there was a payment of ₹ 20,00,000/- on that day, and it was replied by the Respondent and therefore the submission that the present proceeding is barred by limitation is not accepted and unsustainable. In view of that answer the question above in negative. Issue (iv) - with regard to the question as to whether the Applicant has made out a case to invoke the jurisdiction of this Tribunal under I & B Code, it is on record that the Respondent owes money to the Applicant and the Respondent never disputed the same till the issuance of the demand notice dated 24.05.2017. The quality of the coal was never disputed by the Respondent and there is no document filed by the Respondent before this Tribunal. Therefore conclude that the Applicant has made out a case to initiating insolvency proceeding against the Respondent under I&B code 2016. Thus inclined to admit the petition as the Applicant has made out a case and also satisfied this Adjudicating Authority for admitting the petition. It is also proved that there is a debt due payable by the Respondent/CD and they have defaulted in making payments. The objections raised by Counsel for the Respondent are not convincing and valid ground for rejection of the instant petition and case laws are also not applicable to the facts and circumstances of the present case. The instant petition is admitted and order commencement of the Corporate Insolvency Resolution Process which shall ordinarily get completed within 180 days, reckoning from the day this order is passed - direct the Registry to take up the matter with the Insolvency & Bankruptcy Board of India (IBBI) for appointing a Interim Resolution Professional (IRP) as the Applicant has not proposed any name of the IRP to be appointed.

Summary

Issues Involved:

1. Existing dispute between parties.
2. Applicability of Res-Judicata.
3. Limitation period.
4. Invocation of jurisdiction under I&B Code, 2016.

Issue-wise Detailed Analysis:

Issue (i): Existing Dispute Between Parties

The Tribunal examined whether there was an existing dispute between the parties before the filing of the petition under the Insolvency and Bankruptcy Code, 2016. It was noted that the Customs Authorities had issued a show cause notice to the Respondent, not the Applicant, regarding the import of Bituminous Coal instead of Steam Coal. The High Seas Sales Agreement between the parties mentioned only "Non-cooking coal in bulk of Indonesian Origin" without specifying Steam Coal. No evidence was provided by the Respondent to show that the quality of coal supplied was disputed earlier. The Tribunal concluded that there was no existing dispute between the Applicant and the Respondent related to the transaction in question.

Issue (ii): Applicability of Res-Judicata

The Tribunal considered whether the principle of Res-Judicata applied to the current proceedings. It was noted that the Applicant had previously filed a winding-up petition before the High Court, which was transferred to the Tribunal and subsequently abated due to the Applicant's failure to submit required information. The Ministry of Corporate Affairs' notification allowed filing a fresh petition under the I&B Code, 2016. Therefore, the Tribunal found that the principle of Res-Judicata did not apply to the current proceedings.

Issue (iii): Limitation Period

The Tribunal examined the applicability of the limitation period to the present proceedings. It was established that the Applicant issued a demand notice on 24.05.2017, within three years from the last payment made on 13.08.2014. The Tribunal determined that the notice was issued within the limitation period, and thus, the petition was not barred by limitation.

Issue (iv): Invocation of Jurisdiction Under I&B Code, 2016

The Tribunal assessed whether the Applicant had made a case for invoking the jurisdiction under the I&B Code, 2016. It was confirmed that the Respondent owed money to the Applicant and had not disputed the claim until the demand notice was issued. The quality of coal supplied was never disputed, and no relevant documents were provided by the Respondent. The Tribunal concluded that the Applicant had established a case for initiating insolvency proceedings against the Respondent under the I&B Code, 2016.

Conclusion:

The Tribunal admitted the petition, initiating the Corporate Insolvency Resolution Process (CIRP) against the Respondent. The Registry was directed to appoint an Interim Resolution Professional (IRP) and declare a moratorium as per Section 14 of the I&B Code, 2016. The IRP was instructed to take charge of the Respondent's management and comply with the necessary provisions of the Code. The petition was disposed of with these directions.