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2019 (3) TMI 1285 - Tri - Insolvency and BankruptcyCorporate Insolvency Resolution Process (CIRP) - existence of dispute - Whether the demand notice as required by Section 8 of the Code was duly delivered to the respondent-corporate debtor? - HELD THAT - The respondent-corporate debtor has stated that the notice was sent at the incorrect address because the registered office of the corporate debtor was changed prior to the date of purported demand notice and the change of address updated in the portal of the Ministry of Corporate Affairs. This defence was taken without support of the documents as already discussed while narrating facts of the case. Even the resolution for change of the registered office was passed by the respondent-corporate debtor much after the delivery of the demand notice. The tracking report at page 38 of the paper book shows that the demand notice was delivered to the corporate debtor on 03.01.2018 and there was no indication in the tracking report that the addressee has left the address. There is a presumption of correctness to the report of the postal authorities and same does not stand rebutted. We are therefore of the firm view that the demand notice was duly delivered to the respondent-corporate debtor at the registered address. Petition barred by limitation - HELD THAT - There is existence of dispute between the parties and that the amount claimed to be in default was not due. We have already held that the demand notice was duly served upon the respondent-corporate debtor on 03.01.2018 but no reply thereto was sent. The respondent-corporate debtor has rather denied the receipt of the demand notice on the plea of change of address and the said plea has not been accepted. It is not the version of the respondentcorporate debtor that any time before the institution of this petition or service of the demand notice, the respondent-corporate debtor sent any communication to the petitioner-operational creditor raising the dispute which has now been attempted in the reply. There is no communication by the respondent that the payment of ₹22,50,000/- was towards the full and final settlement of the claim against the corporate debtor. If that be the situation there was no occasion for the respondent-corporate debtor in depositing an amount of ₹2,00,000/- towards the part payment by RTGS transfer on 04.05.2015 which is much after the dates of all the aforesaid cheques. The only and the proper course for the respondent was to file its own ledger account of the petitioner-operational creditor being maintained by the respondent-corporate debtor in the regular course of business. The same was not done for obvious reasons. The company which is incorporated under the Act is supposed to maintain the books of account. We find that there is no scope for contending that there was existence of dispute between the parties with regard to the claim raised by the petitioner-operational creditor in this case. The affidavit of authorised representative of the respondent-corporate debtor as at page 28 of the petition states that the respondent has not replied to the demand notice and it has not issued any notice of dispute relating to the unpaid operational debt. Even the amount in default has not been paid. So there is compliance of Section 9(3)(b) of the Code. The fact that the petitioner-operational creditor has filed the criminal complaint against Mr. Anil Singhania and Mr. Pankaj Singhania under Section 405, 406 etc of the IPC cannot be considered as raising of a dispute because that was a complaint filed by the petitioner-operational creditor before the Court of Additional Chief Judicial Magistrate, Meerut attached as Annexure R-1. All the essential ingredients of Section 9 subsection (5)(i) is of the Code are fulfilled.In view of the above we admit this petition under Section 9 of the Code and declare the moratorium under Section 14(1) of the Code
Issues Involved:
1. Delivery of the demand notice as required by Section 8 of the Insolvency and Bankruptcy Code, 2016. 2. Whether the petition is barred by limitation. 3. Existence of a dispute between the parties regarding the payment claimed to be in default. 4. Appointment of the Interim Resolution Professional (IRP). Issue-wise Detailed Analysis: 1. Delivery of the Demand Notice: The respondent-corporate debtor contended that the demand notice was sent to an incorrect address as the registered office had changed prior to the notice. However, the tribunal found that the change of address was updated after the delivery of the demand notice. The tracking report confirmed delivery on 03.01.2018, and there was no indication that the addressee had left the address. The tribunal concluded that the demand notice was duly delivered to the respondent-corporate debtor at the registered address. 2. Whether the Petition is Barred by Limitation: The respondent-corporate debtor argued that the petition was filed after the expiry of three years from the date of default (10.07.2014). However, the tribunal noted that part payments were made by the respondent from time to time, with the last payment of ?2,00,000/- made on 04.05.2015. This extended the limitation period, making the petition filed on 16.04.2018 within the limitation period. Thus, the tribunal found that the petition was not barred by limitation. 3. Existence of a Dispute: The respondent-corporate debtor claimed that there was a pre-existing dispute and that certain payments totaling ?22,50,000/- were not accounted for by the petitioner. However, the tribunal found no communication from the respondent indicating that these payments were towards full and final settlement. Additionally, the tribunal noted that the payments were credited to the account of M/s Universal Woollen Mills, a sister concern of the respondent. The tribunal concluded that there was no pre-existing dispute regarding the claim and that the respondent had not raised any dispute before the demand notice or the filing of the petition. 4. Appointment of the Interim Resolution Professional (IRP): The petitioner did not propose the name of an IRP. The tribunal referred to the panel of resolution professionals approved for the NCLT, Chandigarh Bench, and appointed Mr. Mahesh Bansal as the IRP. The tribunal directed the IRP to take control of the corporate debtor's assets, make a public announcement, and constitute a committee of creditors. The IRP was also instructed to send progress reports to the tribunal every fortnight. Conclusion: The tribunal admitted the petition under Section 9 of the Insolvency and Bankruptcy Code, 2016, and declared a moratorium under Section 14(1) of the Code. The tribunal appointed Mr. Mahesh Bansal as the Interim Resolution Professional and directed him to manage the affairs of the corporate debtor and report regularly to the tribunal.
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