2022 (5) TMI 869 - 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 - service of demand notice - Time Limitation - HELD THAT - The Applicant has filed an Affidavit under Section 9 (3) (b) stating that after serving of demand notice, no notice of dispute is given by the Corporate Debtor - The Registered Office of the Corporate Debtor is situated in Rajkot and therefore this Tribunal has jurisdiction to entertain and try this Application - As per the Part IV of Form 5 of the Application the date of default is mentioned as 20.08.2017 the present Application is filed in July 2019. Hence the debt is not time barred and the Application is filed within the period of limitation. The claim of the operational creditor stands established and prima facie there is default in payment of the amount due to the Applicant without any dispute in existence. Moreover, the claim of applicant is not contested by corporate debtor inspite of various opportunities given, which amounts to admission of debt - the present application is complete u/s. 9(5)(i)(a) and Applicant is entitled to claim its dues, a fact which remained uncontroverted, establishing the default in payment of the operational debt. The present application is admitted in terms of Section 9 (5)(i) of the Code. Petition admitted - moratorium declared.

Issues:
1. Application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 against the Corporate Debtor.
2. Outstanding dues and non-payment by the Corporate Debtor.
3. Ex-parte proceedings against the Corporate Debtor.
4. Appointment of Interim Resolution Professional.
5. Moratorium and deposit requirement.

Analysis:

1. The Application was filed by Givaudan (India) Private Limited against Captivate Foods Private Limited under Section 9 of the Insolvency and Bankruptcy Code, 2016. The Applicant claimed that an amount of Rs. 35,73,712/- was due and payable by the Corporate Debtor, out of which only Rs. 2,50,000/- had been paid, leaving Rs. 32,65,110/- outstanding. Additionally, there was a differential tax liability of Rs. 2,59,875/- and interest on sales tax due, totaling Rs. 35,73,712/-.

2. The Applicant provided evidence of invoices issued, delivery of goods, and non-payment by the Corporate Debtor despite the stipulated payment terms. The Corporate Debtor failed to respond to a demand notice and subsequent legal counsel's notice, leading to the Application under Section 9 of the Code. The Tribunal found the claim of the operational creditor to be valid, as the Corporate Debtor did not contest the debt or raise any dispute.

3. Despite various opportunities given, the Corporate Debtor did not contest the claim, leading to ex-parte proceedings. The Tribunal found that the debt was not time-barred, and the Application was within the period of limitation. The Corporate Debtor's failure to make payments and lack of response further supported the admission of the debt.

4. The Tribunal admitted the Application under Section 9(5) of the Code, establishing the default in payment of operational debt. An Interim Resolution Professional (IRP) was appointed, and the Applicant was directed to deposit Rs. 2,00,000/- with the IRP to cover expenses. The moratorium under Section 14(1) was imposed on the Corporate Debtor, prohibiting certain actions, with additional regulations in force during the moratorium period.

5. The appointment of the IRP, deposit requirement, and communication of the order to the parties involved and relevant authorities were detailed in the judgment to ensure compliance with the Code and regulations. The Tribunal's decision aimed to facilitate the resolution process and protect the interests of the parties involved in the insolvency proceedings.

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