2021 (2) TMI 1178 - Tri - Insolvency and Bankruptcy

Facility services company's CIRP petition against educational institute dismissed for laches and limitation

M/s. SMS Integrated Facility Services Private Limited Versus M/s. Expat Educational Institute

The case involved a facility services company petitioning to initiate Corporate Insolvency Resolution Process (CIRP) against an educational institute for ... Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues or not - Operational Creditors - existence of debt and dispute or not - service of notice - notice was not replied - principles of natural justice - HELD THAT:- Since initiation of insolvency proceedings involves various proceedings contemplated under the supervision of IRP/RP, where IRP/RP is to be assisted by the Management/ staff of the Corporate Debtor, it is necessary that Corporate Debtor should be aware Of CIRP proceedings. And principles of natural justice also mandates that concerned party should be given proper notice of proceedings. Therefore, the Adjudicating Authority ordered notice to the Respondent on 03.03.2020, and case stands posted on various dates viz., 05.01.2021, 06.01.2021 and 22.01.2021. However, none appears for the Respondent and no reply is filed. It is also relevant to point out here that consideration of mere debt and default in question, without knowing/ serving notice on the Corporate Debtor, would be futile exercise. Even the information furnished on behalf of the Petitioner, as stated supra, would be of no use. The Adjudicating Authority cannot come to conclusion basing on one side version of the Petitioner. And the Corporate Debtor is stated to have cleared all the invoices of the Operational Creditor till the month of February, 2017 - Though invoices in question contemplate within 10 days, failing which it carries interest @ 24% Demand filed the payment p.a, the Petitioner has not initiated any legal proceedings prior to the instant Proceedings and the Petitioner has not explained the reasons for not initiating proceedings earlier. As per the MCA website, the Corporate Debtor Active compliance was Active Non-Compliance. Since the year of 2016, the Corporate Debtor has failed to file its statutory returns. However, it is not known whether the Company is on active rolls of the ROC or not. If the Company failed to comply with statutory compliances, the ROC can take appropriate action to strike off it. And while striking off the Company, ROC can take into consideration of interest of Petitioner herein, in terms of extant provisions of Companies Act, 2013, and the Rules made thereunder - the Company petition is barred by laches and limitation, and it is filed with an intention to recover alleged debts, which is against the object of Code. Petition is hereby disposed of by directing the ROC, Bengaluru to examine whether the Corporate Debtor has complied with the statutory requirement(s) and to take appropriate action, and while taking action. Issues:1. Initiation of Corporate Insolvency Resolution Process (CIRP) under IBC, 2016 against a Corporate Debtor for default in payment.Analysis:The petitioner, a facility services company, filed a petition seeking to initiate CIRP against the respondent, an educational institute, for defaulting on payments totaling Rs. 22,69,778, including principal and interest. The respondent had engaged the petitioner for housekeeping services but failed to clear pending invoices from March to December 2017, despite assurances of payment. A demand notice was issued in June 2019, but no response was received, leading to deemed admission of debt by the respondent. The petitioner contended that CIRP should be initiated due to non-payment.The Deputy General Manager of the petitioner filed an affidavit stating that the respondent had been inactive since 2016, failing to file statutory returns. The respondent's status remained active, but details about its projects were scarce. News articles highlighted issues with the respondent's business commitments, indicating financial troubles. The respondent's lack of response to the demand notice and failure to update project details raised concerns about its financial status.The adjudicating authority emphasized the importance of the respondent's awareness of CIRP proceedings and the principles of natural justice requiring proper notice. Despite multiple notices, the respondent did not appear or file a reply. The authority cautioned against adjudicating based solely on the petitioner's claims without the respondent's input. The petitioner's delay in initiating legal proceedings and lack of explanation for the delay raised doubts about the petition's timing and intention.Considering the respondent's non-compliance with statutory requirements and the petitioner's delayed action, the authority concluded that the petition was barred by laches and limitation. The petition seemed aimed at recovering debts rather than genuine insolvency concerns, contradicting the objective of the Insolvency and Bankruptcy Code (IBC). The authority directed the Registrar of Companies (ROC) to examine the respondent's compliance status, taking into account the petitioner's interests, and report back within three months. The petition was disposed of with instructions to inform both parties promptly.