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2021 (8) TMI 857 - Tri - Insolvency and BankruptcyMaintainability 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 - time limitation - HELD THAT - The Company Petition was filed by the Operational Creditor who was engaged by the Corporate Debtor, Gopinath Engineering Co. Pvt. Ltd. for carrying out certain jobs of the Corporate Debtor by way of work order dated 10.04.2018. subsequently, the Operational Creditor has raised an invoice for the work done by them on 18.05.2019 by sending a copy Invoice. The Corporate Debtor failed to honour payment due under the invoice. The Operational Creditor issued statutory demand notice under Section 8 of the code calling upon the Corporate Debtor to pay the outstanding liability. The Corporate Debtor having received of the said notice neither sent any reply nor cleared the amount. The Operational Creditor annexed the copy of the demand notice and also track report of the postal department evidencing the receipt of the demand notice by the corporate Debtor - this Tribunal is completely satisfied that the debt and default are established in this case and the debt is also within limitation. It is also evident from the conduct of the Corporate Debtor that he is accepting the liability. Thus, the present Company Petition satisfies all the necessary requirements for admission. Petition admitted - moratorium declared.
Issues: Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 of the Insolvency and Bankruptcy Code, 2016 based on default in payment by the Corporate Debtor to the Operational Creditor.
Detailed Analysis: 1. Facts and Allegations: - The Operational Creditor, M/s Totale Global Pvt. Ltd., filed a Company petition seeking to initiate CIRP against Gopinath Engineering Co. Pvt. Ltd. for default in payment. - The petition was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, alleging non-payment of ?41,30,000 by the Corporate Debtor. 2. Submissions of the Operational Creditor: - The Operational Creditor was engaged by the Corporate Debtor for Refractory Jobs at BPCL, Mumbai, and completed the work as per the work order. - Invoices were raised for the work done, and repeated demands for payment were made to the Corporate Debtor. - Despite issuing cheques for part payment, the Corporate Debtor's cheques were returned due to insufficient funds, leading to the Operational Creditor sending demand notices and reminders. - The Corporate Debtor failed to pay the outstanding amount of ?41,30,000, prompting the Operational Creditor to file the application for CIRP. 3. Tribunal's Findings: - The Tribunal noted that the Operational Creditor had fulfilled all necessary requirements for admission of the Company Petition. - The Corporate Debtor did not file any reply or oppose the petition, and multiple adjournments were taken on the pretext of settlement. - The debt and default were established through invoices, demand notices, and the Corporate Debtor's conduct, indicating acceptance of liability. - The Company Petition was filed within the limitation period, and all documents supported the claim for admission. 4. Decision and Orders: - The Tribunal admitted the Company Petition and ordered the initiation of CIRP against Gopinath Engineering Co. Pvt. Ltd. - An Interim Resolution Professional (IRP) was appointed from the list provided by the Insolvency and Bankruptcy Board of India. - The Operational Creditor was directed to deposit an initial CIRP cost, and various prohibitions and directions were issued to protect the interests of the parties involved. - The order of moratorium was declared, and the management of the Corporate Debtor vested in the IRP/RP during the CIRP period. 5. Conclusion: - The Tribunal's decision to admit the Company Petition and initiate CIRP was based on the established debt, default, and compliance with legal requirements by the Operational Creditor. - The detailed findings and orders ensure the protection of the Corporate Debtor's assets and the smooth functioning of the insolvency resolution process. This comprehensive analysis outlines the key details, submissions, findings, and orders of the Tribunal regarding the initiation of Corporate Insolvency Resolution Process in the case based on default in payment by the Corporate Debtor to the Operational Creditor.
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