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2022 (9) TMI 542 - Tri - Insolvency and BankruptcyMaintainability of petition - 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 - whether the demand notice in Form 3 dated 15.09.2020 was properly served? - HELD THAT - The demand notice was sent through e-mail (Annexure G) on 17.09.2020 at the registered e-mail address of the corporate debtor as available on the master data of the MCA. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - The petitioner/operational creditor has filed an affidavit under Section 9(3)(b) of the Code, wherein it has been deposed that the no notice was given by the corporate debtor relating to a dispute of the unpaid operational debt at any point in time. Thus, it can be inferred that there is no preexisting dispute between the parties. Whether this application was filed within limitation? - HELD THAT - A perusal of the case file shows that the application was filed vide Diary No.00259 on 18.02.2021 (refiled on 16.08.2021), whereas the date of default is 23.03.2020, therefore, this Adjudicating Authority finds that this application has been filed within limitation. There is a total unpaid operational debt (in default) of ₹2,20,28,662/-. The operational creditor has provided the details of the debt due and has also annexed with the petition copy of ledger account statement, statement of accounts along with invoices and credit notes. Accordingly, the petitioner/operational creditor has established the debt and the default, which is more than Rupees one lakh i.e. the threshold limit (pre-revised) - It is noted that the corporate debtor has failed to make payment of the amount due as mentioned in the statutory notice till date. Thus, the conditions under Section 9 of the Code stand satisfied. It is evident from the above-mentioned facts that the liability of the corporate debtor is undisputed. Accordingly, the petitioner proved the debt and the default which is above threshold limit. There is no rebuttal to the claim filed by the petitioner as respondent/corporate debtor chose not to appear. In the present petition, all the aforesaid requirements have been satisfied. 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, the petition is admitted. Petition admitted - moratorium declared.
Issues Involved:
1. Proper service of demand notice. 2. Dispute over operational debt. 3. Filing within the limitation period. 4. Completeness of the application. 5. Appointment of Interim Resolution Professional (IRP). 6. Satisfaction of conditions under Section 9 of the Insolvency and Bankruptcy Code (IBC). Issue-wise Detailed Analysis: 1. Proper Service of Demand Notice: The first issue for consideration is whether the demand notice in Form 3 dated 15.09.2020 was properly served. The demand notice was sent through e-mail on 17.09.2020 to the registered e-mail address of the corporate debtor as available on the master data of the MCA. The notice was also couriered to the registered address but returned with the remark 'Consignee Shifted'. Additionally, the notice was advertised in two local daily newspapers. Thus, the Tribunal found that the demand notice was properly served. 2. Dispute Over Operational Debt: The next issue is whether the operational debt was disputed by the corporate debtor. The petitioner/operational creditor filed an affidavit under Section 9(3)(b) of the Code, stating that no notice was given by the corporate debtor relating to a dispute of the unpaid operational debt at any point in time. The Tribunal inferred that there was no preexisting dispute between the parties regarding the operational debt. 3. Filing Within the Limitation Period: The Tribunal examined whether the application was filed within the limitation period. The application was filed on 18.02.2021 (refiled on 16.08.2021), while the date of default was 23.03.2020. The Tribunal concluded that the application was filed within the limitation period. 4. Completeness of the Application: The Tribunal reviewed the contents of the application filed in Form 5 and found it to be complete. The operational creditor provided details of the debt due, along with supporting documents such as the ledger account statement, statement of accounts, invoices, and credit notes. The unpaid operational debt amounted to Rs. 2,20,28,662/-, which is above the threshold limit. The Tribunal determined that the petitioner established the debt and default. 5. Appointment of Interim Resolution Professional (IRP): In Part-III of Form No. 5, no Interim Resolution Professional was proposed by the petitioner. Consequently, the Tribunal appointed Mr. Satya Dev Kaushik as the Interim Resolution Professional in the matter. The Tribunal directed Mr. Kaushik to take control and custody of the corporate debtor's assets, prepare an inventory of assets, and comply with all relevant provisions of the Code. 6. Satisfaction of Conditions Under Section 9 of the IBC: The Tribunal found that the conditions under Section 9 of the Code were satisfied. The corporate debtor failed to make payment of the operational debt even after receiving the demand notice. The liability of the corporate debtor was undisputed, and there was no rebuttal to the claim filed by the petitioner. The Tribunal admitted the petition for initiation of the Corporate Insolvency Resolution Process (CIRP) against the corporate debtor, Hooq Digital (India) Private Limited. Additional Directions: - A moratorium was declared as per Section 14 of the Code, prohibiting the institution or continuation of suits, transferring or disposing of assets, and recovering property occupied by the corporate debtor. - The supply of essential goods or services to the corporate debtor shall not be terminated during the moratorium period. - The IRP was directed to make a public announcement of the CIRP initiation, constitute a Committee of Creditors, and send regular progress reports to the Tribunal. - The petitioner was instructed to deposit Rs. 60,000 with the IRP to meet immediate CIRP expenses. Conclusion: The petition was allowed and admitted, and the Tribunal directed communication of the order to both parties and the Interim Resolution Professional.
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