2021 (10) TMI 1038 - 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 - proper service of demand notice or not - HELD THAT - The demand notice was sent to the registered address of the corporate debtor on 21.06.2018. It can be seen that the corporate debtor has replied to the Demand Notice on 29.06.2018 (Annexure-II(A)-24. Therefore, the question of non-delivery of Demand Notice does not arise at all. It can be seen that the operational creditor has replied to the response/reply vide notice dated 11.07.2018. In view of the same, it is held that demand notice has been duly served. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - The respondent-corporate debtor has filed reply and raised objections with regard to quality of material supplied by the operational creditor. It can be seen that respondent has raised the same objection in its reply to Demand Notice dated 29.06.2018. However, the corporate debtor has raised the objections for the first time only after issuance of Demand Notice dated 21.06.2018 and has failed to show that if any dispute was raised prior to the issuance of Demand Notice. Thus, the dispute was raised for the first time only after service of Demand Notice, therefore it cannot be treated as pre-existing dispute. Hence, this issue is held in favour of the petitioner. Time Limitation - HELD THAT - It can be seen that the invoices and lorry receipts Annexure 1(A)-1 to Annexure 1(A)-18 pertains to the years 2014 and 2015. The present application is filed on 13.07.2018. It can be seen from the Balance Confirmation letter dated 31.03.2016 issued by the corporate debtor, that the corporate debtor has acknowledged the debt amounting to ₹ 93,05,491/- towards operational creditor. Thus, the CP is well within the period of limitation. 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 lakh 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/-, the petition is admitted in terms of Section 9 of the IBC and accordingly, moratorium is declared in terms of Section 14 of the Code. Petition admitted.

Summary

Issues:
1. Proper service of demand notice under Section 8 of the IBC.
2. Dispute regarding operational debt.
3. Filing of Corporate Petition (CP) within the limitation period.

Issue 1: Proper service of demand notice under Section 8 of the IBC:
The petition was filed under Section 9 of the IBC for initiating the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The demand notice under Section 8 of the IBC was sent to the registered address of the Corporate Debtor, and the Corporate Debtor replied to the demand notice. The Tribunal held that the demand notice was duly served as the Corporate Debtor responded to the notice, establishing proper service.

Issue 2: Dispute regarding operational debt:
The Corporate Debtor raised objections regarding the quality of material supplied by the Operational Creditor, but these objections were raised after the issuance of the demand notice. The Tribunal found that the dispute was raised for the first time after the service of the demand notice, indicating it was not a pre-existing dispute. Therefore, this issue was held in favor of the Operational Creditor.

Issue 3: Filing of Corporate Petition (CP) within the limitation period:
The invoices and lorry receipts provided as evidence pertained to the years 2014 and 2015, while the CP was filed in 2018. However, the Corporate Debtor had acknowledged the debt in a balance confirmation letter dated 31.03.2016. The Tribunal found that the CP was filed within the limitation period based on the acknowledgment of the debt by the Corporate Debtor.

The Tribunal admitted the petition under Section 9 of the IBC, declaring a moratorium in accordance with Section 14 of the Code. Various prohibitions were imposed during the moratorium period, including restrictions on legal actions against the Corporate Debtor and disposal of its assets. The Tribunal appointed an Interim Resolution Professional (IRP) and directed the IRP to take necessary steps under the IBC. The IRP was tasked with constituting a Committee of Creditors and submitting progress reports to the Tribunal regularly. The order was communicated to both parties, with the counsel instructed to provide a copy to the IRP promptly. The Registry was also directed to send a copy of the order to the IRP via email without delay.