2022 (7) TMI 880 - 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 - whether the demand notice in Form 3 dated 11.11.2020 was properly served? - HELD THAT - The petitioner has placed a written acknowledgement duly received by Corporate Debtor and through the email as well whereunder it was stated that the demand notice was delivered. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - It is to be noted that the respondent-corporate debtor already proceeded ex parte. Moreover, the petitioner has appended affidavit u/s 9(3)(b) vide Diary No.5362/5 dated 12.05.2022 stating that corporate debtor has not issued any notice or raised any dispute regarding the debt for which the present petition has been filed by the operational creditor. Whether this application is filed within limitation? - HELD THAT - This application was filed on 19.04.2021 vide Diary No.00526. Whereas the date of default i.e. 01.09.2018. Therefore, this Adjudicating Authority finds that this application has been filed within limitation. The contents of the application filed in the Form 5 and find the same to be complete - there is a total unpaid operational debt Rs.2,60,97,973/- consisting of a principal of INR 1,73,09,110/- coupled with interest of Rs.87,88,863/- calculated from 01.09.2018 till 15.02.2021. The operational creditor has supplied materials to the corporate debtor and raised invoices attached as Annexure-4. Accordingly, the petitioner proved the debt and the default which is more than Rupees one crore by the respondent-corporate debtor - It is noted that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till date. Thus, the conditions under Section 9 of the Code stand satisfied. Accordingly, the petitioner proved the debt and the default, which is above the threshold limit. It is seen that the petition preferred by the petitioner is complete in all respects. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the petitioner. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, we admit the petition for initiation of the CIR Process - Petition admitted - moratorium declared.

Summary

Issues:
1. Proper service of demand notice
2. Dispute of operational debt by the corporate debtor
3. Filing of the application within limitation

Issue 1: Proper Service of Demand Notice

The petitioner filed a petition under Section 9 of the IBC seeking to initiate CIRP against the Corporate Debtor for defaulting on payments. The demand notice in Form 3 dated 11.11.2020 was served to the Corporate Debtor, supported by a written acknowledgement and an email confirmation. The Tribunal found the service of the demand notice to be proper, meeting the requirements.

Issue 2: Dispute of Operational Debt by Corporate Debtor

The Corporate Debtor did not appear, and the operational debt was not disputed. An affidavit submitted by the petitioner stated that no notice or dispute regarding the debt was raised by the Corporate Debtor. The Tribunal, considering the ex parte proceeding and the lack of dispute, concluded that the operational debt was not contested by the Corporate Debtor.

Issue 3: Filing Within Limitation

The application was filed on 19.04.2021, well within the limitation period from the date of default on 01.09.2018. The Tribunal determined that the application was timely filed, meeting the requirement of being within the prescribed limitation period.

The Tribunal thoroughly examined the petition, finding all requirements satisfied. The operational debt of Rs.2,60,97,973/- was substantiated with invoices and a ledger. The Corporate Debtor failed to pay the outstanding amount despite the demand notice, fulfilling the conditions under Section 9 of the IBC. Consequently, the petition was admitted for initiating the CIR Process for the Corporate Debtor, M/s Hygiene Feeds & Farms Private Limited. The Tribunal imposed a moratorium and appointed an Interim Resolution Professional, directing the suspension of certain actions against the Corporate Debtor's assets. The Interim Resolution Professional was tasked with managing the affairs, preparing asset inventories, and constituting a Committee of Creditors. Regular progress reports were mandated, and the petitioner was required to deposit funds for immediate CIRP expenses. The petition was allowed and admitted, with orders communicated to all relevant parties promptly.