2021 (6) TMI 896 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT - The demand notice was sent to the registered address of the corporate debtor as per the master data (Annexure-B) of the petition in which registered office is shown as Plot No. 1, Naher (Canal) Colony B/h Water Filling Plant, Dhankot, Gurgaon, HR 122001. Copy of postal receipt and tracking report showing duly service of notice are attached as Annexure E. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - The respondent-corporate debtor has filed reply and admitted the occurrence of default towards operational creditor. Thus, there is no dispute as to the liability between the corporate debtor and the operational creditor. Existence of debt and default - HELD THAT - It has been shown that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till date. It is also observed that the conditions under Section 9 of the Code stand satisfied. Accordingly, the petitioner proved the debt and the default, which is more than ₹ 1 lac by the respondent-corporate debtor. The present petition being complete and having established the default in payment of the Operational Debt for the default amount being above ₹ 1,00,000/- - petition admitted - moratorium declared.

Issues:
1. Petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiating Corporate Insolvency Process.
2. Jurisdiction of the Adjudicating Authority over the Corporate Debtor.
3. Unpaid operational debt and default by the Corporate Debtor.
4. Validity of the demand notice served on the Corporate Debtor.
5. Dispute regarding the operational debt.
6. Admittance of the petition and declaration of moratorium under Section 14 of the Code.
7. Appointment of Interim Resolution Professional and constitution of Committee of Creditors.

Analysis:
1. The petition was filed under Section 9 of the IBC by the Operational Creditor seeking to initiate the Corporate Insolvency Process against the Corporate Debtor. The petitioner provided details of the service agreement, invoices, and reminders sent to the Corporate Debtor regarding the unpaid operational debt.

2. The jurisdiction of the Adjudicating Authority was established as the Corporate Debtor was a company incorporated under the Companies Act, falling within the State of Haryana. The Authorized and Paid-Up Share Capital of the Corporate Debtor was also disclosed.

3. The petition detailed the agreement between the parties, the invoiced amount, TDS deductions, and subsequent reminders for payment. The Corporate Debtor failed to make the payment, leading to the default in discharging its obligations towards the Operational Creditor.

4. The demand notice in Form 3 dated 07.02.2020 was properly served to the Corporate Debtor at its registered address, as evidenced by the postal receipt and tracking report attached to the petition.

5. The Corporate Debtor did not dispute the operational debt and admitted the default towards the Operational Creditor, eliminating any dispute regarding the liability.

6. The Tribunal found the petition complete and established the default in payment of the operational debt, which exceeded ?1,00,000. Consequently, the petition was admitted, and a moratorium was declared under Section 14 of the IBC, imposing various restrictions on the Corporate Debtor.

7. An Interim Resolution Professional was appointed, and instructions were provided for the constitution of a Committee of Creditors. The IRP was directed to submit reports and take necessary steps under the IBC, ensuring the resolution process proceeds as per the legal requirements.

This detailed analysis of the judgment highlights the key issues addressed by the Tribunal and the legal implications of the decision in the context of the Insolvency and Bankruptcy Code, 2016.

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