2022 (9) TMI 566 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - pre-existing dispute between the parties or not - time limitation - HELD THAT - On the ground of limitation, it is pertinent to mention that, the Corporate Debtor has submitted that, the Operational Creditor has annexed an invoiced dated 04 August, 2018 and 04 April, 2019 in the Petition. Further, in order to avoid limitation, the Operational Creditor again raised three invoices dated 10 January, 2020 - Notwithstanding, the fact that the Operational Creditor raised the invoice twice, this instant application has been filed on 03 August, 2021 before this Adjudicating Authority. Even if we take into account the dates of the invoices raised on 04 August, 2018 and 04 April, 2019, then also this application would fall within limitation. Pre-existing disputes - HELD THAT - Upon perusal of the alleged emails Annexure E at pages 47 50 of the reply , it is seen that the same do not appear to be genuine as they are not printed from the webpage, but appear to have been typed out. The Hon ble Supreme Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED 2017 (9) TMI 1270 - SUPREME COURT has observed that all that the Adjudicating Authority has to see at the stage of Admission is whether there is a plausible contention which requires further investigation and that the Dispute is not a patently feeble legal argument or an assertion of fact or a moonshine defence unsupported by tangible materials/evidence. Further, upon perusal of the record at pages 42 43 of the reply Annexure C , it is seen that the Corporate Debtor failed to fulfill its obligations by not clearing the dues of the Operational Creditor on time, which in a cascading manner, resulted in the delay in the completion of the purchase order. The present petition made by the Operational Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time - petition admitted - moratorium declared.

Summary

Issues:
1. Is this instant Application barred by limitation?
2. Is there any pre-existing dispute between the parties?

Analysis & Findings:

1. Limitation:
Upon examining the records, the Tribunal noted that the Operational Creditor had annexed invoices dated 04 August 2018 and 04 April 2019. The Corporate Debtor argued that the Operational Creditor raised additional invoices on 10 January 2020 to avoid limitation. However, the application filed on 03 August 2021 falls within the limitation period, even considering the earlier dates of the invoices.

2. Pre-existing Dispute:
The Corporate Debtor contended that there were pre-existing disputes, supported by emails and WhatsApp chats indicating incomplete work and inflated invoices. However, the Tribunal found these emails to be unauthentic as they appeared typed rather than printed from a webpage. The Tribunal referred to the Supreme Court's ruling in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited, which states that at the admission stage, the Adjudicating Authority only needs to see if there is a plausible contention requiring further investigation and that the dispute is not a patently feeble legal argument.

The Tribunal observed that the Corporate Debtor failed to clear the dues on time, leading to delays in the completion of the purchase orders. The Tribunal concluded that the Operational Creditor's petition was complete and established that the Corporate Debtor defaulted on a debt exceeding the minimum amount stipulated under section 4(1) of the Code.

Order:
a) The application filed by the Operational Creditor under section 9 of the Code is admitted.
b) A moratorium under section 14 of the IBC is declared.
c) The moratorium shall last until the completion of the CIRP or until the Adjudicating Authority approves a resolution plan or orders liquidation.
d) Public announcement of the CIRP shall be made immediately.
e) Mr. Madhusudhan Kumar Poddar is appointed as the Interim Resolution Professional (IRP) of the Corporate Debtor.
f) During the CIRP period, the management of the Corporate Debtor shall vest in the IRP.
g) The IRP/RP shall submit periodical reports on the progress of the CIRP.
h) The Operational Creditor shall deposit Rs.3,00,000/- with the IRP for expenses.
i) The Court Officer is directed to communicate this Order to the parties involved by Speed Post and email.
j) The Operational Creditor shall serve a copy of this Order on the IRP and the Registrar of Companies, West Bengal, Kolkata.

The case is scheduled for a periodical report filing on 21.10.2022. A certified copy of the order may be issued upon compliance with requisite formalities. The order was pronounced on 07 September 2022.