2020 (3) TMI 762 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - section 9 of Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - HELD THAT - It is pertinent to note that the Applicant has placed on record all the invoices, stating that the Respondent itself had acknowledged the said invoices. Once the debt is shown as due, it is for Respondent to prove that there are no outstanding dues to be paid to the Applicant. There has been much cloud in the submission of the Respondent. Therefore, without any specific details of material particulars or evidence the fact of existence of a dispute cannot be sustained. In the present case, there is no such dispute as pre-existing, the dispute which was being claimed to be pre-existing by the corporate debtor did not survive. The present application is complete and the Operational Creditor is entitled to claim its dues, establishing the default in payment of the operational debt beyond doubt, and fulfillment of requirements under section 9(5) of the Code. Hence, the present application is admitted. Application admitted - moratorium declared.

Issues Involved:
1. Validity of the Design Agreement.
2. Existence of Debt and Default.
3. Pre-existing Dispute.
4. Appointment of Interim Resolution Professional (IRP).
5. Jurisdiction of the Tribunal.
6. Moratorium under Section 14 of IBC.

Issue-wise Detailed Analysis:

1. Validity of the Design Agreement:
The Respondent contended that the design agreement was not valid as it was executed by an unauthorized person, Mr. Gaurav Marya, who was not a director or authorized signatory of the Corporate Debtor. The agreement did not bear the signatures or seal/stamp of the Corporate Debtor. The Applicant refuted this by stating that the agreement was signed by Ms. Reejakshi Singh, the creative head of the project "Esquire Club" of the Corporate Debtor, and was addressed to Mr. Gaurav Marya, who was employed with the Corporate Debtor. The Applicant also provided various email correspondences as evidence of the association of Ms. Reejakshi Singh with the Corporate Debtor.

2. Existence of Debt and Default:
The Applicant claimed a total debt of ?12,69,420, which included the principal amount of ?9,14,499, interest at 24% per annum, and site visit reimbursement charges. The Applicant raised several invoices for the services rendered, which were acknowledged by the Respondent. Despite reminders and a demand notice, the Respondent failed to pay the outstanding dues. The Respondent argued that the claim was false and frivolous, disputing the interest calculation and supervision charges. However, the Applicant maintained that the debt was due as per the design agreement and the invoices raised.

3. Pre-existing Dispute:
The Tribunal referred to the Supreme Court judgments in "Innoventive Industries Ltd. v. ICICI Bank Ltd." and "Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd." to determine the existence of a pre-existing dispute. It was held that a pre-existing dispute must be raised before the demand notice or invoices are received by the Corporate Debtor. In this case, the Respondent did not raise any dispute before the demand notice and only raised issues while replying to the notice, which cannot be considered a pre-existing dispute.

4. Appointment of Interim Resolution Professional (IRP):
The Applicant did not propose the name of any IRP. Consequently, the Tribunal appointed Mr. Chander Shekhar as the IRP, directing him to take necessary steps as per sections 15, 17, 18, 20, and 21 of the IBC. The Operational Creditor was directed to deposit ?2 lakhs with the IRP to meet the expenses for performing his functions.

5. Jurisdiction of the Tribunal:
The registered office of the Respondent is situated in New Delhi, thus falling under the jurisdiction of the National Company Law Tribunal, New Delhi.

6. Moratorium under Section 14 of IBC:
Upon admission of the application under section 9(5) of the IBC, a moratorium as envisaged under section 14(1) was imposed, prohibiting the Respondent from certain actions as per proviso (a) to (d) of section 14(1). During the moratorium period, the terms of section 14(2) to 14(3) of the Code shall apply.

Conclusion:
The Tribunal found the application complete and established the default in payment of the operational debt beyond doubt. The application was admitted, and the IRP was appointed. A moratorium was imposed, and the Registry was directed to communicate the order to relevant parties and update the status of the Corporate Debtor on the Registrar of Companies' website.

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