2020 (4) TMI 865 - 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 - Time Limitation - HELD THAT - It can be seen that the Operational Creditor has served demand notice in Form 4 dated 04-01-2018 upon the Corporate Debtor successfully. The speed post receipt along with the tracking report showing the delivery of the demand notice is found attached as Annexure-D of the petition. It is observed that the Corporate Debtor has chosen not to reply to the above stated demand notice. It could also be seen that if any dispute as to the outstanding due was there, the same could have been stated in the reply to the demand notice by the Corporate Debtor. Therefore, the pleading of the Corporate Debtor challenging the veracity of the invoices raised by the Operational Creditor lacks force. Time Limitation - HELD THAT - The Operational Creditor has attached the bank statement of ICICI Bank (Page 148 of the petition) wherein it could be seen that the last payment of ₹ 50,000/- dated 22-07-2015 has been received by the Corporate Debtor from which it could be presumed that the same was received in lieu of the services provided by the Operational Creditor. It could also be inferred from the ledger of the Corporate Debtor (Page 20 of the petition) that the due date for the payment for the last invoice raised on 23-07-2015 is 22-08-2015. It is therefore held that the period of limitation starts from the date 22-08-2015 itself and the petition is very well within the limitation period as the petition has been filed on 17-08-2018 with this Tribunal. The operational debt remains unpaid, the demand notice was delivered to the corporate debtor and reply was received within the stipulated 10 days period. In view of the satisfaction of the conditions provided for in section 9(5)(i) of the Code, the petition for initiation of CIRP is deserves to be admitted - petition admitted - moratorium declared.

Summary

Issues Involved:
1. Jurisdiction and Territorial Authority
2. Services Provided and Payment Default
3. Demand Notice and Response
4. Allegations by Corporate Debtor
5. Rejoinder by Operational Creditor
6. Limitation Period
7. Admission of Petition and Initiation of CIRP
8. Appointment of Interim Resolution Professional (IRP)
9. Declaration of Moratorium

Issue-wise Detailed Analysis:

1. Jurisdiction and Territorial Authority:
The respondent-corporate debtor is incorporated under the Companies Act, 1956, with its registered office in District Ludhiana, Punjab, falling within the territorial jurisdiction of the National Company Law Tribunal (NCLT), Chandigarh Bench.

2. Services Provided and Payment Default:
The petitioner-operational creditor provided transportation, detention, and warehousing services to the respondent-corporate debtor from 28-09-2010 to 23-07-2015. The corporate debtor defaulted in paying ?19,19,471/- for these services.

3. Demand Notice and Response:
The petitioner sent a demand notice in Form 3 & 4 dated 04-01-2018, which was delivered to the respondent on 17-01-2018. The petitioner did not receive any reply within the stipulated 10 days, nor was any dispute communicated by the respondent.

4. Allegations by Corporate Debtor:
The respondent contended that the petition was barred by limitation, as most bills were from 2010 to 2014. They also alleged damages caused by the petitioner during transportation and warehousing, settled via debit notes dated 30-04-2017 amounting to ?17 lacs.

5. Rejoinder by Operational Creditor:
The petitioner denied receiving any debit notes and challenged their authenticity. It was argued that the claims by the respondent were false and misleading, created to avoid liabilities.

6. Limitation Period:
The last payment of ?50,000/- was received on 22-07-2015, and the due date for the last invoice was 22-08-2015. The petition filed on 17-08-2018 was within the limitation period, as the limitation starts from 22-08-2015.

7. Admission of Petition and Initiation of CIRP:
The petition met the conditions of section 9(5)(i) of the Insolvency and Bankruptcy Code, 2016. The operational debt remained unpaid, and the demand notice was delivered without any dispute raised by the corporate debtor. Thus, the petition was admitted for initiating the Corporate Insolvency Resolution Process (CIRP).

8. Appointment of Interim Resolution Professional (IRP):
Mr. Ashok Kumar Singla was appointed as the Interim Resolution Professional. His credentials were verified, and no adverse findings were reported. His duties include taking control and custody of the corporate debtor's assets, making a public announcement, constituting a committee of creditors, and filing regular progress reports.

9. Declaration of Moratorium:
A moratorium was declared under section 14 of the Code, prohibiting:
- Institution or continuation of suits or proceedings against the corporate debtor.
- Transferring or disposing of any assets of the corporate debtor.
- Actions to foreclose or recover any security interest.
- Recovery of property occupied by the corporate debtor.
The moratorium remains effective until the completion of the CIRP or until a resolution plan is approved or liquidation is ordered.

This comprehensive analysis covers all relevant issues, ensuring a thorough understanding of the judgment while preserving the legal terminology and significant phrases from the original text.