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2021 (10) TMI 813 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existene of debt and dispute or not - Time Limitation - HELD THAT - It is established that the outstanding was acknowledged and accepted by the Corporate Debtor and this itself shows that the Petition is filed well within the period of limitation. It is also observed by the Bench that on 24.09.2019, 15.10.2019, 06.11.2019 and 28.11.2019 the Corporate Debtor appeared but failed to file reply in the matter. On 28.11.2019, the Corporate Debtor filed Affidavit whereby it was submitted that the settlement talks were going on and time was sought to file consent terms. Despite several opportunities being granted, the Corporate Debtor neither appeared nor filed reply/consent terms in rebuttal. Therefore, there is no reason to disbelieve the contentions raised by the Operational Creditor and hence, the matter was proceeded ex-parte. The Petition made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of rupees one lakh stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Petition admitted - moratorium declared.
Issues Involved:
1. Jurisdiction of the Tribunal 2. Default in payment by the Corporate Debtor 3. Applicability of Section 18 of the Limitation Act, 1963 4. Admission of liability by the Corporate Debtor 5. Initiation of Corporate Insolvency Resolution Process (CIRP) 6. Appointment of Interim Resolution Professional (IRP) 7. Moratorium under Section 14 of the IBC Detailed Analysis: 1. Jurisdiction of the Tribunal: The Tribunal confirmed its jurisdiction to adjudicate the petition as the Corporate Debtor is registered in Mumbai, Maharashtra, under the Companies Act, 1956, with its registered office located within the jurisdiction of the Mumbai Bench of the National Company Law Tribunal (NCLT). 2. Default in Payment by the Corporate Debtor: The Operational Creditor, a leading manufacturer, supplied bearings to the Corporate Debtor from September 2015 to January 2017, raising 104 invoices totaling ?1,45,75,610. Despite these supplies, the Corporate Debtor defaulted on the payment. A joint meeting held on 12th November 2016 resulted in a Memorandum of Agreement acknowledging the Corporate Debtor's liability to pay ?2,28,91,714, which was later rounded off to ?2,25,00,000. However, the Corporate Debtor only paid ?52,73,000 till July 2017 and subsequently stopped payments. 3. Applicability of Section 18 of the Limitation Act, 1963: The Tribunal examined the applicability of Section 18 of the Limitation Act, 1963, which allows for a fresh period of limitation to be computed from the date of acknowledgment of debt. The Operational Creditor cited precedents from the Supreme Court and NCLAT, such as Laxmi Pat Surana v. Union Bank of India and M.M. Ramachandran v. South Indian Bank Ltd., to argue that the Corporate Debtor's acknowledgment of debt in meetings held on 12th November 2016 and 13th September 2017, and subsequent payments till 23rd March 2019, extended the limitation period. 4. Admission of Liability by the Corporate Debtor: The Corporate Debtor's acknowledgment of its liability during meetings on 12th November 2016 and 13th September 2017, and partial payments made till 23rd March 2019, were critical in establishing the debt's validity within the limitation period. The Corporate Debtor's failure to appear or rebut the claims further strengthened the Operational Creditor's case. 5. Initiation of Corporate Insolvency Resolution Process (CIRP): The Tribunal found the petition complete in all respects and established the Corporate Debtor's default of a debt exceeding the minimum threshold of ?1 lakh under Section 4(1) of the IBC. Consequently, the Tribunal admitted the petition and ordered the initiation of CIRP against the Corporate Debtor. 6. Appointment of Interim Resolution Professional (IRP): The Tribunal appointed Mr. Arun Bagaria as the Interim Resolution Professional (IRP) to carry out the functions as mandated under the IBC. The Operational Creditor was directed to deposit ?5,00,000 with the IRP to cover expenses related to issuing public notices and inviting claims. 7. Moratorium under Section 14 of the IBC: The Tribunal declared a moratorium effective from the date of the order until the completion of the CIRP or approval of a resolution plan. The moratorium included: - Suspension of suits or proceedings against the Corporate Debtor. - Restriction on transferring or disposing of assets. - Prohibition on foreclosure or enforcement of security interests. - Protection of essential goods or services supply to the Corporate Debtor. The Tribunal directed the Registry to communicate the order to the concerned parties and the Registrar of Companies for compliance and updating the Corporate Debtor's master data. Conclusion: The Tribunal admitted the petition for initiating CIRP against the Corporate Debtor, appointed an IRP, and declared a moratorium, ensuring compliance with the IBC provisions and protecting the interests of the Operational Creditor.
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