2022 (1) TMI 64 - 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 - HELD THAT - It is an admitted fact that the M.O.U dated 16.02.2018 was executed between the parties. The respondent in its reply has admitted that fact that ₹ 1.05 crores as per the MOU is pending to be paid by respondent to applicant towards supply of goods. The respondent has not denied the fact of executing the MOU - In respect of difference in amount claimed by applicant, it is pertinent to mention here that this is not a recovery forum and as far as there is debt and default the quantum of claim is immaterial. What is material that the amount of default, as admitted by respondent as well, is more than ₹ 1 lac in terms of Section 4 of the Code. Application admitted - moratorium declared.

Issues:
1. Petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 for Corporate Insolvency Resolution Process initiation.
2. Dispute regarding the quality of supplied goods and the amount owed by the corporate debtor.
3. Authorization of the applicant's representative to file the application.
4. Discrepancy in the claimed amount in the demand notice and the application.
5. Interpretation of 'dispute' under the Insolvency and Bankruptcy Code.
6. Appointment of an Insolvency Resolution Professional and deposit requirement.
7. Implementation of moratorium and related provisions post-application admission.

Detailed Analysis:

1. The petition was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, seeking to initiate the Corporate Insolvency Resolution Process against the Respondent, M/s. VHS Beverages Private Limited. The Applicant, AMD Industries Limited, claimed an outstanding amount of ?3,19,82,394 along with interest and highlighted the issuance of dishonored cheques by the Respondent.

2. A significant dispute arose regarding the quality of goods supplied by the Applicant to the Respondent, leading to alleged losses suffered by the Respondent. The Respondent contended that the application was not maintainable due to lack of authorization for filing and discrepancies in the claimed amounts between the demand notice and the application.

3. The Respondent further argued against the claimed amount, citing a Memorandum of Understanding (MOU) that allegedly limited the liability to a lesser amount than claimed by the Applicant. The Applicant, in response, emphasized the lack of denial by the Respondent regarding the emails and MOU, asserting the validity of the claim.

4. The Tribunal considered the admitted execution of the MOU and the Respondent's acknowledgment of pending payment as per the MOU. It emphasized that the quantum of claim was not material as long as there was a debt and default, which was established to be more than ?1 lakh, meeting the Code's requirements.

5. Referring to the definition of 'dispute' under the Code, the Tribunal invoked the Supreme Court's ruling to determine the existence of a genuine dispute that required further investigation. Given the admitted liability by the Respondent in the MOU, the Tribunal found the Applicant's claim justified.

6. Consequently, the Tribunal appointed an Insolvency Resolution Professional and directed the Applicant to deposit funds for the professional's expenses. The moratorium provisions under Section 14 of the Code were implemented upon admission of the application, ensuring protection for the corporate debtor during the resolution process.

7. Various administrative directives were issued, including communication of the order to the involved parties, compliance reporting, and provision of necessary documents to the appointed Insolvency Resolution Professional and regulatory authorities for record-keeping and procedural updates.

← Previous Next →