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2018 (9) TMI 480 - Tri - Insolvency and BankruptcyInitiation of Corporate Insolvency Resolution Process - Held that - As per the records the applicant has attempted to serve the copy of the application on the Corporate Debtor on 23.05.2018 in compliance of the order dated 15.05.2018 as dasti but the acceptance of the application was refused by the staff/security personnel of the Corporate Debtor and also refused to give anything in writing. An affidavit has been filed by the Applicant on 25.05.2018 to that effect. Hence service is deemed to be complete. None appeared for the Corporate Debtor . The amount of debt claimed is ₹ 31,85,862/- which is above 1 lakh. The default occurred on 22.11.2016, hence the debt is not time barred and the application is filed within the period of limitation. The registered office of the Corporate Debtor is situated at Delhi and is within the territorial jurisdiction of this Tribunal. In the circumstances mentioned above Corporate Debtor despite repeated service has not appeared before this Tribunal and existence of a default of debt due to the Applicant is established. The Tribunal is of the considered view that this application requires to be admitted and that CIRP process is required to be initiated against the Corporate Debtor.
Issues:
Initiation of Corporate Insolvency Resolution Process under Section 9 of IBC, 2016. Detailed Analysis: The application was filed by M/s. Vaiva Metals and Alloys Private Limited seeking initiation of Corporate Insolvency Resolution Process (CIRP) against M/s. Sungil India Private Limited under Section 9 of the Insolvency and Bankruptcy Code, 2016. The Applicant, engaged in importing and stockists of various materials, had supplied alloy steel blocks to the Corporate Debtor but was left with an unpaid balance of ?31,85,862. Despite repeated demands and a notice under Section 8 of the Code, the Corporate Debtor failed to make the payment, leading to the application for CIRP. The Applicant also filed an affidavit under Section 9(3)(b) to support the claim. The Applicant faced challenges in obtaining a bank certificate as required under Section 9(3)(c) of the IBC. However, the bank provided a certified copy of the bank statement and requested the Tribunal to dispense with the requirement based on a precedent set by the Hon'ble Supreme Court. Additionally, the Applicant encountered difficulties in serving the application to the Corporate Debtor, as the staff/security personnel refused to accept it. Despite this, service was deemed complete as per an affidavit filed by the Applicant. The amount of debt claimed exceeded ?1 lakh, and the default occurred on 22.11.2016, ensuring that the debt was not time-barred and the application was within the period of limitation. The Tribunal found the Corporate Debtor in default and established the existence of the debt due to the Applicant. Consequently, the Tribunal admitted the application and initiated the CIRP process against the Corporate Debtor. An Interim Resolution Professional was appointed as the Corporate Insolvency Resolution Process commenced. As a result of the application being admitted, a moratorium was imposed on the Corporate Debtor as per the provisions of Section 14(1) of the IBC, 2016, prohibiting various actions against the Corporate Debtor. Essential goods or services supply was protected during the moratorium period, and the duration of the moratorium was determined as per Section 14(4) of the Code. The order of moratorium came into effect immediately upon the admission of the application. Communication of the order was to be sent to the Applicant, Corporate Debtor, and relevant authorities, ensuring compliance with the legal process.
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