2020 (3) TMI 93 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its outstanding dues - existence of debt and dispute - time limitation - HELD THAT - On perusal of the records it is found that having failed to get the outstanding payments from the respondent, the applicant was compelled to issue demand notice under section 8 of I B Code on dated 23.07.2019. Record also shows that the respondent has not raised any reply/dispute against the demand notice so issued by the applicant. On perusal of the records it is found that the corporate debtor had raised invoice dated 25th April, 2015 for an amount of ₹ 15,60,600/- and the operational creditor made payment of said invoice via RTGS on 30th April, 2015, whereas, closer order was issued by the Gujarat Pollution Control Board (GPCB) on 08.06.2015 i.e. much after receipt of the advance payment by the operational creditor/applicant. Under such circumstances, the plea raised by the corporate debtor that due to closer order of GPCB, the corporate debtor could not supply the ordered goods is not justifiable - the operational debt has fallen due on 30.04.2015 and the petition is filed on 19th December, 2017, the petition is well within limitation. On perusal of the record it is found that the petition is complete in all respect. The petitioner is able to establish that there exists debt as well as occurrence of default and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force - petition admitted - moratorium declared.

Summary

Issues:
1. Jurisdiction of the National Company Law Tribunal
2. Validity of the application under the Insolvency and Bankruptcy Code, 2016
3. Existence of operational debt and default
4. Dispute raised by the corporate debtor
5. Appointment of Insolvency Resolution Professional
6. Declaration of moratorium and related orders

Jurisdiction of the National Company Law Tribunal:
The respondent argued that the National Company Law Tribunal lacked jurisdiction to entertain the petition. However, the Tribunal found that it had the authority to adjudicate the matter.

Validity of the Application under the Insolvency and Bankruptcy Code, 2016:
The petitioner, an operational creditor, filed the application under Section 9 of the Insolvency and Bankruptcy Code, 2016. The Tribunal examined the documents submitted by the petitioner, including demand notices and affidavits, to ascertain the validity of the claim.

Existence of Operational Debt and Default:
The petitioner claimed that the respondent owed an operational debt for the supply of goods, which remained unpaid. The Tribunal noted that the debt had fallen due on a specific date, and the petitioner had fulfilled the requirements of the Insolvency and Bankruptcy Code. The respondent failed to dispute the claim, leading to the Tribunal's conclusion that the debt was payable.

Dispute Raised by the Corporate Debtor:
The respondent raised various objections, including disputing the amount owed and citing reasons for non-delivery of goods. However, the Tribunal found these objections unsubstantiated and lacking supporting documentation. It determined that the petitioner had established the existence of the debt and default, and the claim was not time-barred.

Appointment of Insolvency Resolution Professional:
In accordance with the provisions of the Code, the Tribunal directed the appointment of an Interim Resolution Professional to initiate the Corporate Insolvency Resolution Process. The Tribunal specified the responsibilities of the Interim Resolution Professional and the necessary public announcements.

Declaration of Moratorium and Related Orders:
The Tribunal declared a moratorium to prohibit certain actions against the corporate debtor, safeguarding its assets during the insolvency resolution process. Essential services to the debtor were to continue uninterrupted, subject to government notifications. The Tribunal appointed an Insolvency Resolution Professional and communicated the order to relevant parties, ensuring compliance with the insolvency resolution process.

This detailed analysis of the judgment highlights the key issues addressed by the National Company Law Tribunal in the matter, providing a comprehensive overview of the decision and its implications.