2021 (9) TMI 1194 - 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 - time limitation - service of demand notice - HELD THAT - The Applicant filed the present Application under section 9 of IBC, 2016 and served the copy of this application via speed post to the registered office, site office and the addresses of directors of corporate debtor which was returned undelivered. The petition was also served at the registered email address of the corporate debtor as per the master data which was duly delivered to the corporate debtor as it dint bounce back. The service affidavits have been duly filed. Considering that notice was sent at the registered address of the company as reflected on the MCA website and the same was returned with the remark Addressee left without instructions , shall be considered served, because the same can be manipulated by the corporate debtor - The service of Section 9 is complete. Moreover, the email service is complete. The corporate debtor in spite of service did not appear, neither any reply filed. Hence, the corporate debtor has been proceeded ex-parte vide order dated 19.01.2020 of the Hon'ble Bench, NCLT. As per Form V, the total debt outstanding is ₹ 4,66,285/-, which includes the principal amount of ₹ 4,01,970/- along with interest @ 24% per annum of ₹ 64,315/- till date of filling of application which is due and payable by the corporate debtor to the applicant - The date of default is 12.09.2019 and the present application is filed on 28.02.2020. Hence the application is not time barred and filed within the period of limitation - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. The Applicant has filed an affidavit in compliance of section 9(3)(b).The present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w Section 9 of the code and is complete - the applicant is entitled to claim its dues, establishing the default in payment of the operational debt. Moreover, the contentions of the applicant have remained uncontroverted and undisputed by the corporate debtor proving the debt becoming due. Hence, the application is admitted. Application admitted - moratorium declared.

Summary

Issues:
1. Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 for Corporate Insolvency process initiation.
2. Unpaid dues by the Corporate Debtor leading to default.
3. Service of notice and communication with the Corporate Debtor.
4. Jurisdiction of the Tribunal to entertain the application.
5. Appointment of Interim Resolution Professional and initiation of moratorium.

Analysis:

1. The application was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 by the proprietor of M/s. Lakshmi Steels against M/s. Aaradhyam Developers Private Limited seeking initiation of the Corporate Insolvency process. The Applicant supplied goods to the Corporate Debtor, who failed to pay the outstanding amount of ?4,01,970/- despite repeated requests and communication.

2. The Applicant detailed the transactions with the Corporate Debtor, including partial payments and a dishonored cheque. The Corporate Debtor did not dispute the quality of goods or the outstanding balance. A demand notice was served, but the Corporate Debtor did not respond, leading to the application under Section 9 for default in payment of operational debt.

3. The Applicant demonstrated the service of notice to the Corporate Debtor through various means, including physical delivery and email communication. Despite the service, the Corporate Debtor did not appear or file a reply, resulting in the proceedings going ex-parte as observed in a relevant legal precedent.

4. The Tribunal established its jurisdiction to entertain the application based on the location of the Corporate Debtor's registered office in Delhi. The application was filed within the limitation period, and all necessary forms and documents were submitted as per the requirements of the Code and Rules.

5. The Tribunal admitted the application, appointing an Interim Resolution Professional and initiating a moratorium as per the provisions of the Insolvency and Bankruptcy Code. The Applicant was directed to deposit a sum with the IRP to cover expenses, and various communication and compliance steps were outlined for all parties involved, including the IRP, IBBI, and ROC.

This detailed analysis covers the key issues addressed in the judgment, providing a comprehensive overview of the legal proceedings and decisions made by the National Company Law Tribunal, New Delhi Bench.