2018 (5) TMI 2098 - Tri - Insolvency and Bankruptcy

Transfer of Winding-Up Case to NCLT for Insolvency Proceedings

The case initially filed in the High Court for winding up was transferred to the NCLT under the Transfer of Proceedings Rules, 2016. The NCLT admitted the ... Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Operational Creditors - Case is being transferred from High Court - Section 8 Notice was issued after the service of Main Petition - HELD THAT:- Admittedly this case had been transferred from the Hon’ble High Court and in such transferred cases the requirement is to submit all information forming part of the records transferred from the Hon’ble High Court and the Petition is to be Admitted U/s. 7, 8 or 9 of the Code. The other admitted position is that while the old Petition was filed before the Hon'ble High Court a Notice was issued on 03.03.2015 under the provisions of Section 433(e) of the Companies Act. That Notice was a legal Notice stating all the facts of the Debt in question along with requisite evidences such as Invoices etc. to establish the genuineness of the Debt. Notification No. GSR 1119(E) dated 07.12.2016 notified for Transfer of Proceedings Rules, 2016 is worth mentioning. Considering the Notification issued and on comparing with the provisions of the Code it is logical to hold that there is no legal requirement to issue Notices of Demand repeatedly. The duplicity of issuance of Notice of Demand is not a requirement of Law. he Debt and the occurrence of default is established. Accordingly, this Petition under consideration deserves to be “Admitted” - petition admitted - moratorium declared. Issues:1. Transfer of petition from High Court to NCLT for winding up.2. Claim of debt by Operational Creditor against Corporate Debtor.3. Allegations of non-payment and discrepancies in stock.4. Legal validity of the demand notice and application process.5. Appointment of Interim Resolution Professional (IRP) and initiation of insolvency process.6. Enforcement of moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016.Transfer of Petition from High Court to NCLT:The case was initially filed in the High Court for winding up under sections 433 and 434 of the Companies Act, 1956. Subsequently, the petition was transferred to the NCLT as per the Transfer of Proceedings Rules, 2016. The NCLT admitted the petition under sections 7, 8, or 9 of the Insolvency and Bankruptcy Code, 2016, based on the records transferred from the High Court.Claim of Debt by Operational Creditor:The Operational Creditor claimed a debt of Rs. 22,71,110 against the Corporate Debtor based on a franchise agreement executed in 2011. Allegations included non-payment of dues, discrepancies in stock, and failure to settle outstanding amounts despite repeated follow-ups. An advocate notice demanding payment with interest was issued, leading to the claim amount.Legal Validity of Demand Notice and Application Process:The Respondent argued that the demand notice was served after the application was filed, contrary to statutory requirements. They contended that the absence of invoices in the notice and application invalidated the claim amount. However, the NCLT found the debt and default established, dismissing objections raised by the Respondent and admitting the petition.Appointment of Interim Resolution Professional and Insolvency Process:The Operational Creditor proposed the appointment of an IRP, Mr. Prakash Dattatraya Naringrekar, who was confirmed after meeting the necessary criteria. The NCLT directed the initiation of the insolvency process, including public announcements and compliance with resolution plan requirements within 30 days.Enforcement of Moratorium:Upon admission of the application, the NCLT declared a moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016. This prohibited the initiation of legal proceedings against the Corporate Debtor and prevented liquidation of assets until the resolution process was completed. Essential supplies to the Debtor were to continue uninterrupted during this period, ensuring the smooth progress of the insolvency resolution process.This detailed analysis of the judgment highlights the key issues addressed by the NCLT in the case, including the transfer of the petition, debt claim, legal validity of notices, appointment of IRP, initiation of insolvency process, and enforcement of the moratorium to facilitate the resolution of the insolvency matter effectively.