2019 (1) TMI 1811 - Tri - Insolvency and Bankruptcy

Operational Creditor Petition Admitted for Insolvency Proceedings

The Tribunal admitted a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016, filed by an Operational Creditor against a Corporate Debtor ... Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor or not - existence of debt and dispute or not - HELD THAT:- The respondent having entered into an agreement dated 02.04.2018 failed to supply the material as per the work orders placed by the petitioner. Respondent also failed to repay the advance amount received by him from the petitioner. Therefore, there is a debt due from the respondent to the petitioner. Since, the amount of claim relates to provision of supply of goods, the claim amount has to be treated as an operational debt. Therefore, petitioner is an operational creditor within the meaning of Section 5(20) of the I & B Code. Respondent is a company registered under the Companies Act and it is liable to pay the operational debt to the petitioner - Inspite of issuance of Form 3 Demand Notice, respondent did not choose to pay the unpaid operational debt. The Bank account filed by the petitioner clinchingly show that the unpaid operational amount has not been credited to the account of the petitioner. Moreover, respondent also admitted the operational debt. No notice of dispute has been issued by the respondent. The petition filed by the petitioner is complete in all respects. Application admitted - moratorium declared. Issues Involved:1. Petition under Section 9 of Insolvency and Bankruptcy Code, 2016 for triggering Corporate Insolvency Resolution Process (CIRP).2. Failure of respondent to supply food and beverages items as per purchase orders and refund advance amount.3. Admission of liability by respondent in the reply.4. Appointment of Insolvency Resolution Professional and order of moratorium.Detailed Analysis:1. The petitioner, an Operational Creditor, filed a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 seeking to initiate Corporate Insolvency Resolution Process (CIRP) against the respondent, a Corporate Debtor. The petitioner alleged that the respondent failed to supply food and beverages items as per purchase orders and did not refund the advance amount of Rs. 5,00,000 paid by the petitioner. The respondent, a company registered under the Companies Act, admitted to entering into an agreement with the petitioner but failed to fulfill its obligations under the agreement, leading to a debt due from the respondent to the petitioner.2. The respondent, in its reply, acknowledged the agreement with the petitioner and the advance payment received. The respondent cited reasons for the failure to supply the material as per the purchase order and requested time to either provide the quality material or return the money. However, the Tribunal observed that the respondent's failure to supply the material and repay the advance amount constituted an operational debt owed to the petitioner. The Tribunal noted that the petitioner had followed the necessary procedures, including issuing a demand notice and providing evidence of the debt.3. Based on the agreement and admissions made by the respondent, the Tribunal concluded that the petitioner qualified as an operational creditor under Section 5(20) of the Insolvency and Bankruptcy Code. The Tribunal found the petition to be complete and admitted it, appointing an Insolvency Professional to act as an Interim Resolution Professional. Additionally, the Tribunal ordered a moratorium under Section 13(1)(a) of the Code, prohibiting certain actions against the corporate debtor, and directed the IRP to cause a public announcement of the CIRP as per Section 15 of the Code.4. The Tribunal's order of moratorium encompassed various restrictions on legal actions against the corporate debtor, ensuring the continuity of essential goods and services during the moratorium period. The Tribunal also emphasized the communication of the order to the concerned parties and scheduled a follow-up report by the IRP. The matter was listed for further proceedings on a specified date to monitor the progress of the Corporate Insolvency Resolution Process.