2018 (11) TMI 1538 - Tri - Insolvency and Bankruptcy

Corporate Insolvency Resolution Process - failure to make the payment against invoices - completion of application - expiry of the period of 10 days from the date of delivery of notice or invoice demanding payment - Held that - Admittedly, operational creditor issued notice under sub-section (1) of section 8 of the Code to the Corporate Debtor. However, despite of receipt of such notice, the corporate debtor had not disputed the claim nor submitted any reply in terms of sub-section (2) of section 8 of the Code. In the circumstances application u/s 9 of the Code has been filed in Form-5, where in it was specifically mentioned that no reply has been filed by corporate debtor under sub-section (2) of section 8 of the Code, nor does any dispute have been raised. Once defects have been removed and the application under section 9 is complete and the required particulars have been given; the application is liable to be admitted. In the present case we are satisfied that the application is complete in all respect and the Operational Creditor is entitled to claim its dues towards the goods supplied to the corporate debtor and there has been a default in payment of the operational debt. Besides the invoices raised and the amount claimed by the operational creditor have not been disputed by the respondent corporate debtor. It is also seen that no disciplinary action is pending against the proposed IRP. Therefore, on fulfillment of the requirements of section 9(5)(i)(a) to (e) of the Code, the present application is admitted.

Summary

Issues Involved:
1. Jurisdiction and Admissibility of the Application.
2. Validity of the Operational Debt and Default.
3. Compliance with Procedural Requirements under the Insolvency and Bankruptcy Code, 2016.
4. Appointment of Interim Resolution Professional (IRP).
5. Declaration of Moratorium.

Detailed Analysis:

1. Jurisdiction and Admissibility of the Application:
The Tribunal confirmed its territorial jurisdiction over the case as the registered office of the respondent corporate debtor is in Delhi. The application was filed by M/s. Globe Express Services Private Limited under Section 9 of the Insolvency and Bankruptcy Code, 2016, for initiating Corporate Insolvency Resolution Process (CIRP) against M/s. AGI Cargo Private Limited. The Tribunal noted the compliance with Section 60(1) of the Code, which designates the Tribunal as the Adjudicating Authority.

2. Validity of the Operational Debt and Default:
The applicant provided services for air freight forwarding and issued 46 invoices totaling ?2,935,156.62, which remained unpaid despite repeated requests. A demand notice under Section 8 of the Code was issued on 07.10.2017, but the respondent failed to make any payment or raise any dispute. The Tribunal noted that the respondent acknowledged the receipt of the demand notice and invoices but did not dispute the claim or respond within the stipulated time under Section 8(2) of the Code.

3. Compliance with Procedural Requirements under the Insolvency and Bankruptcy Code, 2016:
The Tribunal examined whether the application met the requirements of Section 9 of the Code. The applicant filed an affidavit certifying no dispute and submitted a bank certificate confirming non-payment. The Tribunal identified initial defects in the application, such as typographical errors and lack of specific documents, which were subsequently rectified by the applicant. The Tribunal emphasized the importance of complying with Section 9(3) of the Code, which mandates furnishing specific documents and evidence of default.

4. Appointment of Interim Resolution Professional (IRP):
The applicant proposed Mr. Mohd. Nazim Khan as the Interim Resolution Professional, who agreed to the appointment and provided necessary declarations and disclosures. The Tribunal verified that no disciplinary proceedings were pending against him, fulfilling the requirement under Section 9(5)(e) of the Code.

5. Declaration of Moratorium:
The Tribunal declared a moratorium under Section 14 of the Code, prohibiting the institution or continuation of suits, transferring or disposing of assets, and recovery actions against the corporate debtor. The moratorium ensures the preservation of the corporate debtor's assets during the CIRP.

Conclusion:
The Tribunal admitted the application under Section 9 of the Insolvency and Bankruptcy Code, 2016, after confirming the validity of the operational debt, compliance with procedural requirements, and the absence of any dispute from the corporate debtor. Mr. Mohd. Nazim Khan was appointed as the Interim Resolution Professional, and a moratorium was declared to protect the corporate debtor's assets during the resolution process. The Tribunal directed the Interim Resolution Professional to perform his duties with utmost dedication and in accordance with the provisions of the Code.