9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 655 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues to Operational Creditor - existence of dent and dispute or not between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute - HELD THAT - The petitioner/ Operational Creditor though claimed to have entered into Purchase Order dated 25.02.2016 (ANNEXURE 'A') with the respondent/ Corporate Debtor, the petitioner/ Operational Creditor could not produce any documentary evidence to the effect that it had provided AMC services as agreed upon, or any evidence to show that the Corporate Debtor has acknowledged debt or any acknowledgement that the Corporate Debtor has received invoices issued by the Operational Creditor or that the Corporate Debtor has confirmed any debt, in part or full - It is further observed that the petitioner/ Operational Creditor had claimed to have issued Demand Notice dated 11.09.2017 (ANNEXURE 'E'). However, there is no proof of service/ acknowledgement of the said Demand Notice. so is the case with Demand Notice dated 17.08.2019 (ANNEXURE 'F'). Besides, affidavit under section 9(3)(b) of the I B Code, 2016, is not filed by the petitioner/ Operational Creditor. We are not able to trace any shred of acknowledgement/ confirmation from the Corporate Debtor that the Operational Creditor had provided AMC services either in part or full or that the Corporate Debtor had acknowledged/ confirmed that the Corporate Debtor owed any dues to the Operational Creditor towards such services or that the Corporate Debtor had paid any part of amount towards any services provided by the Operational Creditor. Nowhere we find any acknowledgement of the Corporate Debtor, except Purchase Order dated 25.02.2016 (ANNEXURE 'A', page 17). Mere signing of Purchase Order, ipso facto, does not lead to its execution - In absence of such acknowledgement/ confirmation by the Corporate Debtor, operational debt is not proved. Further there is no documentary evidence to show that debt has become due and payable by the Corporate Debtor. It can be concluded that (i) no ingredients of any debt having become 'due and payable' are available in the present case, (ii) there is no acknowledgement/ confirmation by the Corporate Debtor that the Corporate Debtor had received any services, in part or full, pursuant to Purchase Order dated 25.02.2016 (ANNEXURE 'A'), and (iii) no evidence that the Corporate Debtor had ever paid any amount towards any services provided by the Operational Creditor. The proceedings initiated by the Operational Creditor is solely based on Purchase Agreement dated 25.02.2016 (ANNEXURE 'A') sans any evidence to show that such an agreement has ever been executed and sans evidence that any debt has become due and payable by the respondent/ Corporate Debtor - petition dismissed.
Issues:
- Operational debt due to non-payment by the Corporate Debtor - Validity of the petition under section 9 of the Insolvency and Bankruptcy Code, 2016 - Authorization for filing the petition by the Power of Attorney Holder - Lack of evidence for debt acknowledgment and payment Operational Debt Issue: The petition was filed by an Operational Creditor seeking admission under section 9 of the Insolvency and Bankruptcy Code, 2016, due to an operational debt of ?6,63,118 along with interest. The Operational Creditor had provided services as per a Purchase Order but the Corporate Debtor failed to complete the payment, leading to the petition for Corporate Insolvency Resolution Process. Validity of Petition Issue: The Corporate Debtor contested the operational debt claim, citing a lack of evidence of debt acknowledgment and breach of obligations by the Operational Creditor. The Corporate Debtor argued that there was no operational debt as defined under the Code, emphasizing the need for specific authorization for initiating the Corporate Insolvency Resolution Process. Authorization Issue: The Corporate Debtor challenged the petition filed by the Power of Attorney Holder, highlighting the necessity of specific authorization for initiating insolvency proceedings. Citing a previous NCLAT decision, the Corporate Debtor argued that a Power of Attorney Holder is not competent to file such applications without explicit authorization. Lack of Evidence Issue: The Tribunal observed a lack of evidence to prove debt acknowledgment and payment by the Corporate Debtor. The Operational Creditor failed to provide documentary evidence of providing services, debt acknowledgment, or receipt of invoices by the Corporate Debtor. Additionally, the absence of an affidavit under section 9(3)(b) of the Code further weakened the case. The Tribunal, after thorough analysis, concluded that the petition lacked merit due to insufficient evidence of debt acknowledgment, payment, and authorization for filing. The Operational Creditor failed to establish the due and payable nature of the debt, leading to the rejection of the petition under section 9 of the Insolvency and Bankruptcy Code, 2016.
|
