2020 (10) TMI 326 - Tri - IBC

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - 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 the 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 Innoventive Industries Ltd. 2017 (9) TMI 1270 - SUPREME COURT , the Hon'ble Supreme Court held that pre-existing dispute is the dispute raised before demand notice or invoices was received by the 'Corporate Debtor'. Any subsequent dispute raised while replying to the demand notice under Section 8(1) cannot be taken into consideration to hold that there is a pre-existing dispute. In the present case, there is no such dispute as pre-existing, the dispute which was being claimed to be pre-existing by the the corporate debtor did not survive - The applicant has filed an affidavit under Section 9(3)(b) stating that no notice of dispute from Corporate Debtor is received - The registered office of respondent is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. Time Limitation - HELD THAT - On perusal of the record it is clear that the last payment was made by the Corporate Debtor on 17.11.2018. Hence, the claim is not time barred. And the present application is well within the limitation period. Thus, the present application is complete and the Applicant 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. Application admitted - moratorium declared.

Summary

Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Existence of Operational Debt and Default by the Corporate Debtor.
3. Pre-existing Dispute between the Parties.
4. Limitation Period for Filing the Application.
5. Appointment of Interim Resolution Professional (IRP).

Issue-wise Detailed Analysis:

1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 of the Insolvency and Bankruptcy Code, 2016:
The application was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by M/s. Adecco India Pvt. Ltd. (Applicant), seeking to initiate the Corporate Insolvency Resolution Process (CIRP) against M/s. BSES Rajdhani Power Limited (Respondent).

2. Existence of Operational Debt and Default by the Corporate Debtor:
The Operational Creditor (Applicant) provided services to the Corporate Debtor (Respondent) under a Principal Agreement dated 04.07.2017, which was amended on 05.09.2017. The Applicant raised invoices for services rendered, which remained unpaid despite several reminders. The total outstanding debt was ?2,68,06,255/- along with interest. The Respondent made a part payment of ?1,00,00,000/- on 17.11.2018, confirming the undisputed nature of the operational debt.

3. Pre-existing Dispute between the Parties:
The Respondent claimed that there was a pre-existing dispute regarding TDS for FY 2012-13 and double payment of bonus for FY 2017-18. The Tribunal noted that the Respondent had raised disputes related to the amounts claimed before the issuance of the demand notice. However, the Tribunal found that these disputes did not constitute a genuine pre-existing dispute as per the standards set by the Hon’ble Supreme Court in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. The Tribunal observed that the disputes raised were not supported by substantial evidence and did not survive the scrutiny required to dismiss the application.

4. Limitation Period for Filing the Application:
The last payment by the Corporate Debtor was made on 17.11.2018. The application was filed within the limitation period, and the claim was not time-barred.

5. Appointment of Interim Resolution Professional (IRP):
The Tribunal admitted the application, finding it complete and establishing the default in payment of the operational debt. Mr. Manoj Kumar Anand was proposed and appointed as the Interim Resolution Professional (IRP). The Tribunal directed the IRP to take necessary steps as per Sections 15, 17, 18, 20, and 21 of the Code. Additionally, a moratorium was imposed as per Section 14(1) of the Code, prohibiting certain actions against the Corporate Debtor during the moratorium period.

Conclusion:
The Tribunal admitted the application under Section 9 of the IBC, 2016, initiating the CIRP against the Corporate Debtor. The Tribunal found that the Applicant had established the default in payment of the operational debt beyond doubt, and the requirements under Section 9(5) of the Code were fulfilled. The Tribunal also directed the Operational Creditor to deposit a sum of ?2 lacs with the IRP to meet the expenses for performing his functions. The registry was instructed to communicate the order to relevant parties and update the status of the Corporate Debtor.