2018 (12) TMI 1311 - Tri - Insolvency and Bankruptcy

Corporate Insolvency Resolution Process - Corporate Debtor has defaulted in making payment of ₹ 32,04,812/- against supply of various books being published by the Operational Creditor - Held that - Operational creditor served demand Notice in Form No. 3 dated 30.10.2017 demanding for payment. The Corporate Debtor replied after the expiry of 10 days, raising, inter-alia, disputes regarding (a) the supply of goods not being in confirmation to the order placed by the authorised persons, (b) the Corporate Debtor is not liable to pay for order placed by individuals other than authorised persons. It is pertinent to note that the Corporate Debtor raised theses disputes after the receipt of the demand notice and no correspondence prior in time to the demand notice about the disputes have been brought on record. The defence taken by the Corporate Debtor is not covered in pre-existing dispute in the light of law laid down by the Hon ble Supreme Court in the case of Mobilox Innovations Private Limited (2017 (9) TMI 1270 - SUPREME COURT OF INDIA). The application made by the Petitioner clearly shows that the operational debt has not been paid even after the service of demand notice. The disputes raised belatedly are not tenable in law. In compliance of Section 9(3)(b) and Section 9(3)(c), Bank statements and affidavit of no dispute has also been annexed, therefore, the petition deserves to be admitted. This Bench hereby admits this petition filed under Section 9 of IBC, 2016, declaring moratorium with consequential directions.

Summary

Issues:
Company petition under section 9 of Insolvency & Bankruptcy Code, 2016 (IBC) for Corporate Insolvency Resolution Process (CIRP) due to default in payment against supply of books.

Detailed Analysis:

1. Background and Default in Payment:
- The petitioner, an operational creditor, filed a Company Petition under section 9 of IBC against the respondent, a corporate debtor, for defaulting in payment of ?32,04,812 against the supply of books.
- An agreement was signed in 2012 appointing the respondent as a distributor for the petitioner. Despite initial payments, the respondent defaulted in payment, leading to the petitioner's claim.

2. Demand Notice and Disputes Raised:
- The operational creditor issued a Demand Notice demanding payment, to which the respondent replied raising disputes regarding the supply of goods and liability for orders not placed by authorized persons.
- The respondent's defense was considered belated and not pre-existing, as per the Supreme Court's decision in Mobilox Innovations Private Limited v. Kirusa Software Private Limited.

3. Evidence and Proceedings:
- The operational creditor provided evidence of invoices, bank statements, and correspondence showing the outstanding dues and attempts to recover the debt.
- During the hearings, the respondent's counsel acknowledged the financial difficulties, indicating no objection to admitting the petition.

4. Admission of Petition and Moratorium Order:
- The Tribunal admitted the petition under section 9 of IBC, declaring a moratorium with specific directions.
- The moratorium included prohibiting suits against the corporate debtor, asset transfers, foreclosure actions, and recovery of property, ensuring continuity of essential goods or services, and appointing an Interim Resolution Professional.

5. Consequential Directions and Resolution Process:
- The moratorium's effect was specified until the completion of the insolvency resolution process or liquidation, with the appointment of the Interim Resolution Professional to oversee the proceedings.
- Public announcement of the insolvency resolution process was mandated, and the Registry was directed to communicate the order to all relevant parties promptly.

This detailed analysis outlines the legal proceedings, evidence presented, disputes raised, and the Tribunal's decision to admit the petition and implement a moratorium for the Corporate Insolvency Resolution Process.