2022 (10) TMI 521 - Tri - Insolvency and Bankruptcy

Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - pre-existing disputes between the parties or not - time limitation - HELD THAT - It is very clear from the e-mail that the Corporate Debtor had once again acknowledged the debt on 02.02.2015 and the above Company Petition can be filed within 3 years from 02.02.2015 i.e. on or before 01.02.2018. In addition to the above as rightly contended by the Petitioner the time spent by the Petitioner in prosecuting the winding up petition before the Hon ble Bombay High Court till its dismissal on 06.09.2017 has to be excluded under Article 14 of the Limitation Act - this Tribunal while dismissing the early Company Petition granted liberty to the Petitioner to file fresh Petition after issuing demand notice and therefore the question of limitation does not arise in this case. Nothing prevented the corporate debtor from preferring an appeal against the order dated 06.09.2017 in granting liberty to the Operational Creditor to file fresh petition while dismissing the company petition as abated. Accordingly, the above Company Petition being filed on 06.03.2018 is within limitation. Pre-existence of disputes - HELD THAT - It is important to observe here that the Operational Creditor has got issue a legal notice before filing winding up petition before the Hon ble Bombay High Court for which the Corporate Debtor did not choose to even send any reply. Even otherwise, the Corporate Debtor having admitted the liability through the minutes of meeting dated 07.12.2012 as well as email dated 02.02.2015 is estopped from raising the issue of quality of goods and thus this bench is of the considered opinion that the above plea of preexistence of disputes raised by the Corporate Debtor is a palpable defence that does not require any further investigation and is liable to be rejected. This bench is of the opinion that the above company petition is liable to be admitted - Petition admitted - moratorium declared.

Summary

Issues: Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 8 & 9 of Insolvency and Bankruptcy Code, 2016; Plea of Limitation; Pre-existence of Disputes.

Initiation of CIRP: The Company petition sought to initiate CIRP against the Corporate Debtor for non-payment of a substantial amount along with interest. The history of the petition involved previous litigations before the Hon'ble Bombay High Court and subsequent transfer to the NCLT post-enforcement of the Insolvency and Bankruptcy Code, 2016.

Plea of Limitation: The Corporate Debtor contested the petition on grounds of limitation, citing the origin of the claim in 2011-2012. However, evidence showed a meeting in 2012 where outstanding dues were acknowledged, and an email in 2015 reaffirmed the debt. The Tribunal excluded time spent on previous litigations and dismissed the limitation plea based on the acknowledgment of debt and legal precedents.

Pre-existence of Disputes: The Corporate Debtor raised the issue of pre-existing disputes, but the Tribunal noted the legal notice issued by the Operational Creditor in 2015 remained unanswered. The Corporate Debtor's acknowledgment of liability through meeting minutes and emails negated the dispute claim. The Tribunal found the defense of pre-existing disputes unsubstantiated and rejected it.

Judgment: The Tribunal admitted the Company Petition, ordering the initiation of CIRP against the Corporate Debtor. An Interim Resolution Professional was appointed, and initial CIRP costs were specified. The Tribunal imposed restrictions on legal actions against the Corporate Debtor, ensuring continuity of essential services during the moratorium period. The management vested in the IRP/RP during CIRP, and necessary notifications were directed to relevant authorities. The Tribunal concluded by instructing the Registry to communicate the order to all parties promptly.