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2020 (12) TMI 34 - Tri - IBCMaintainability of application - initiation of CIRP - Corporate Debtor defaulted in making payment of dues - Existenc eof debt and dispute or not - HELD THAT - It was held in the landmark judgement of Hon ble Supreme Court in Innoventive Industries Ltd. v. ICICI Bank and Anr. 2017 (9) TMI 58 - SUPREME COURT that the existence of a dispute or the record of the pendency of a suit or arbitration proceedings should be pre-existing-i.e. prior to demand notice or invoice received by the Corporate Debtor . The moment there is existence of dispute, the Corporate Debtor gets out of the clutches of the I B Code - In this case, this Tribunal did not come across any record which would show that a dispute that was pre-existing apart from that of a hypothetical or illusory dispute which has been raised by the Corporate Debtor . Hence, it is clear that the Corporate Debtor has not raised any dispute relating to debt nor raised any dispute relating to quality of service of goods. They merely shown the difference of the date on which the amount claimed and that they have already credited an amount of ₹ 3,00,000/- which is not shown in the extract of the bank statement provided in the application. Hence the Operational Creditor is indenting to grab money illegally from the Corporate Debtor claiming an exorbitant interest. The statement made by the Corporate Debtor cannot be termed as a pre-existing dispute or plausible dispute. The present application is complete in all respects and the applicant is entitled to claim its dues. The applicant succeeded in establishing the default in payment of the operational debt beyond doubt. In view of the above, the instant petition deserves to be admitted. Petition admitted - moratorium declared.
Issues Involved:
1. Default in payment by the Corporate Debtor. 2. Existence of a pre-existing dispute. 3. Maintainability of the application under Section 9 of the I&B Code. 4. Calculation and claim of interest by the Operational Creditor. 5. Threshold limit for filing applications under the I&B Code. 6. Appointment of Interim Resolution Professional (IRP). Issue-wise Detailed Analysis: 1. Default in Payment by the Corporate Debtor: The Operational Creditor, involved in the manufacture and supply of aluminium powder-coated grills and allied products, supplied materials to the Corporate Debtor based on purchase orders. Despite raising invoices, the Corporate Debtor failed to make payments amounting to ?4,64,571/- as of 13.04.2018, along with interest @ 24% p.a. The total outstanding debt, including interest calculated till 31st January 2020, was ?6,68,134/-. The Corporate Debtor availed input tax credit for the invoices, indicating acceptance of the goods supplied. 2. Existence of a Pre-existing Dispute: The Corporate Debtor contended that the application under Section 9 of the I&B Code was not maintainable due to a pre-existing dispute. They argued that they had informed the Operational Creditor about the dispute within the statutory period of 10 days from receiving the demand notice. However, the Tribunal, referencing the Supreme Court judgment in "Innoventive Industries Ltd. v. ICICI Bank and Anr.," determined that no substantial pre-existing dispute was evident apart from a hypothetical or illusory dispute raised by the Corporate Debtor. 3. Maintainability of the Application under Section 9 of the I&B Code: The Corporate Debtor argued that the application should be dismissed as the dispute was notified within the statutory period. However, the Tribunal found that the Corporate Debtor's claims did not constitute a valid pre-existing dispute. The Tribunal concluded that the application was complete in all respects and the Operational Creditor had successfully established the default in payment of the operational debt. 4. Calculation and Claim of Interest by the Operational Creditor: The Corporate Debtor disputed the interest claimed by the Operational Creditor, arguing it was calculated with malafide intentions and was exorbitant. However, the Tribunal did not find any substantial evidence to support the Corporate Debtor's claims and determined that the interest calculation was valid as per the terms agreed upon. 5. Threshold Limit for Filing Applications under the I&B Code: The Corporate Debtor contended that the total claim amount of ?6,68,134/- was below the threshold limit of ?1,00,00,000/- as per the notification dated 24.03.2020 by the Ministry of Corporate Affairs. The Tribunal did not address this contention directly in the findings, focusing instead on the validity of the claim and the existence of a pre-existing dispute. 6. Appointment of Interim Resolution Professional (IRP): The Tribunal appointed Mr. Dileep K.P as the Interim Resolution Professional (IRP) to carry out the functions as mentioned under the I&B Code. The IRP was tasked with performing duties as per Sections 15, 17, 18, 19, 20, and 21 of the IBC. Order: The application filed by the Operational Creditor under Section 9 of the I&B Code was admitted. The Tribunal imposed a moratorium as prescribed under Section 14 of the Code, prohibiting the institution of suits, transferring assets, and recovering properties, among other actions. The Tribunal directed the public announcement of the corporate insolvency resolution process and appointed Mr. Dileep K.P as the IRP. The order was to be communicated to all parties involved.
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