2021 (4) TMI 725 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - default and the debt is due and payable or not - time limitation - HELD THAT - In the instant case, the applicant has placed on record enough documents evidencing the default and hence, the present application deserves to be admitted - On perusal of the record it is also found that the instant petition filed by the applicant is well within limitation and there is no pre-existing dispute regarding the operational debt from the side of the corporate debtor. In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the operational debt due and payable to the Applicant - The documents produced by the operational creditor clearly establish the 'debt' and there is default on the part of the Corporate Debtor in payment of the 'operational debt. This adjudicating authority is of the considered view that operational debt is due to the Applicant and it fulfilled the requirement of I B Code. No dispute has been raised by the respondent at any point of time. That, Applicant is an Operational Creditor within the meaning of Section 5 sub-section 20 of the Code. From the aforesaid material on record, petitioner is able to establish that there exists debt as well as occurrence of default and the amount claimed by operational creditor is payable in law by the corporate debtor as the same is not barred by any law of limitation and/or any other law for the time being in force. The corporate debtor has committed default in payment of operational debt and, therefore, it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code - Application admitted - moratorium declared.

Summary

Issues Involved:
1. Whether the petition under Section 9 of the Insolvency and Bankruptcy Code, 2016, is maintainable.
2. Whether the debt claimed by the operational creditor qualifies as "Operational Debt."
3. Whether the respondent/corporate debtor has defaulted in payment of the operational debt.
4. Whether there exists a pre-existing dispute regarding the operational debt.
5. Whether the petition is filed within the limitation period.
6. Whether the applicant has complied with all procedural requirements under the Code.

Issue-wise Detailed Analysis:

1. Maintainability of the Petition:
The petition was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, by the operational creditor. The respondent argued that the petition should have been filed against My Preferred Transformation and Hospitality Private Limited (MTH) instead of the respondent, as the business was transferred to MTH effective from 01.06.2019. However, the tribunal found that the agreement between the applicant and OYO remained intact and the obligations under the agreement continued under the OYO brand. Thus, the liabilities accrued upon the respondent to make payment of the dues.

2. Qualification as "Operational Debt":
The tribunal examined the nature of the debt and found that the amount outstanding is operational debt. The applicant provided sufficient documentation, including the Management Services Agreement, email communications, and ledger accounts, to support the claim of operational debt.

3. Default in Payment:
The applicant demonstrated that the respondent defaulted in paying the Benchmark Revenue amount for several months, totaling ?16,02,000/-. The tribunal found that the respondent had made part payments for July and August 2019 but defaulted thereafter. The tribunal concluded that the respondent committed default in paying the operational debt due and payable to the applicant.

4. Pre-existing Dispute:
The respondent contended that there was a bona fide pre-existing dispute and that the matter should be adjudicated by a different forum. However, the tribunal found no evidence of a pre-existing dispute regarding the operational debt. The tribunal noted that the applicant had issued a demand notice, which was not replied to by the respondent, indicating no dispute was raised at any point of time.

5. Limitation Period:
The tribunal confirmed that the petition was filed within the limitation period. The applicant's claim was supported by documents showing the timeline of the default and the issuance of the demand notice.

6. Procedural Compliance:
The tribunal found that the applicant had complied with all procedural requirements under the Code. The application was complete in all respects, and the documents produced by the operational creditor clearly established the debt and default.

Conclusion:
The tribunal admitted the petition under Section 9 of the Insolvency and Bankruptcy Code, 2016, and declared a moratorium prohibiting the institution or continuation of suits, transferring or disposing of assets, and recovery actions against the corporate debtor. The tribunal appointed an Interim Resolution Professional to manage the corporate insolvency resolution process. The order of moratorium will remain in effect until the completion of the corporate insolvency resolution process or until a resolution plan is approved or liquidation is ordered.