2022 (9) TMI 1162 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existenc eof debt and dispute or not - time limitation - service of demand notice - whether the demand notice in Form 3 dated 30.07.2019 was properly served? - HELD THAT - The petitioner has placed a copy of the registered postal receipts and copy of demand notice which was delivered to the corporate debtor.Therefore, demand notice was duly served. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - It is to be noted that none appeared on behalf of the corporate debtor despite repeated service and has been set ex parte vide order dated 13.12.2021. Moreover, the petitioner has appended compliance affidavit u/s 9(3)(b) stating that there is no reply given by the corporate debtor relating to a dispute of the unpaid operational debt. Even corporate debtor have received the notices but have not replied to the same (attached as Annexure-F of the main petition). It is stated that there is no pre-existing dispute between the parties. Whether this application is filed within limitation? - HELD THAT - This application was filed on 24.09.2019 vide Diary No.5078. Whereas the date of default is 14.04.2018, therefore, this Adjudicating Authority finds that this application has been filed within limitation. In the present petition, all the 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.

Summary

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

Analysis:

Issue 1: Proper service of demand notice
The petitioner provided evidence of serving the demand notice through registered postal receipts and copies of the notice to the corporate debtor. The Tribunal found that the demand notice was duly served, as evidenced by Annexure-K attached to the petition.

Issue 2: Disputed operational debt by corporate debtor
Despite repeated service, the corporate debtor did not appear and was set ex parte. The compliance affidavit stated that there was no reply disputing the operational debt. The petitioner also provided evidence that the corporate debtor received notices but did not respond. The Tribunal concluded that there was no pre-existing dispute between the parties.

Issue 3: Filing of application within limitation
The application was filed on 24.09.2019, within the limitation period, as the default occurred on 14.04.2018. The Adjudicating Authority determined that the application was filed within the prescribed time limit.

The Tribunal reviewed the complete petition, acknowledging the unpaid operational debt of Rs.39,35,057, including interest. The petitioner supplied goods to the corporate debtor and issued invoices, proving the debt and default. The liability of the corporate debtor was deemed undisputed, meeting the conditions under Section 9 of the Insolvency and Bankruptcy Code.

The Tribunal admitted the petition for the initiation of Corporate Insolvency Resolution Process (CIRP) for the corporate debtor. A moratorium was directed to take effect, and an Interim Resolution Professional was appointed. The order of moratorium was to remain in effect until the completion of the insolvency resolution process or liquidation of the corporate debtor.

The appointed Interim Resolution Professional was directed to manage the affairs of the corporate debtor, prepare an inventory of assets, and comply with all relevant provisions of the Code. The petitioner was instructed to deposit a specified amount with the Interim Resolution Professional for immediate CIRP expenses.

The Tribunal allowed and admitted the petition, directing communication of the order to both parties and the appointed Interim Resolution Professional promptly.