2021 (5) TMI 785 - Tri - Insolvency and Bankruptcy

Tribunal Allows Corporate Insolvency Against Debtor for Default in Payment

Jones Lang Lasalle Building Operations Private Limited Versus Sare Facility (Gurgaon) Services Private Limited

The Tribunal admitted the application under section 9(5) of the Insolvency and Bankruptcy Code, 2016, allowing the Applicant, a private limited company, ... Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - time limitation - HELD THAT:- The applicant issued a demand notice under section 8 in Form 4 of I&B Code (Under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 on 18.09.2019. The said notice was sent by Speed Post at the registered address of the corporate debtor as reflected in the master data, which is duly delivered to the Corporate Debtor on 19.09.2019. The tracking report is filed, which mentions 'Shipment Delivered' at the registered address as per master data. The Corporate Debtor has neither raised any dispute to the aforesaid notice nor made any payment towards the outstanding dues - The Corporate Debtor has neither filed any reply nor appeared before the bench. The corporate debtor was proceeded ex-parte on 03.12.2020. Time Limitation - HELD THAT:- As per Form V, Part IV, the Corporate Debtor is liable to pay an outstanding sum of ₹ 1,55,79,348/-. Though the specific mention about the date of default is not mentioned in part IV, the last invoice is of 26.06.2019 and as per the terms of the invoice the payment was to be made within ten days which is on or before 06.07.2019. The present application was filed on 12.12.2019, hence the debt is not time barred and the application is filed within the period of limitation. The Applicant has filed an affidavit under section 9(3)(b) dated 12.12.2019 affirming that no notice of dispute has been given by the Corporate debtor relating to dispute of the unpaid operational debt - registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - the present application is complete and the Applicant is entitled to claim its dues, which remain uncontroverted by the Corporate Debtor, establishing the default in payment of the operational debt beyond doubt. The present application is admitted, in terms of section 9 (5) of IBC, 2016. Application admitted - moratorium declared. Issues: Application under section 9 of Insolvency and Bankruptcy Code, 2016 for initiating Corporate Insolvency process against a private limited company.Analysis:1. The Applicant, a private limited company, filed an application under section 9 of the Insolvency and Bankruptcy Code, 2016, seeking to initiate the Corporate Insolvency process against the Corporate Debtor, also a private limited company. The Applicant was authorized to file the application through a board resolution. The Applicant and the Corporate Debtor had entered into various agreements for property management services, with outstanding dues of Rs. 1,55,79,348. The Applicant issued a demand notice under section 8 of the I&B Code, which was duly delivered to the Corporate Debtor. The Corporate Debtor failed to respond or make any payment towards the outstanding dues, leading to the filing of the present application.2. The Applicant submitted that the Corporate Debtor had not disputed the unpaid operational debt, and the debt was not time-barred as the application was filed within the period of limitation. The Tribunal found that the application was complete, and the Applicant was entitled to claim its dues, as the default in payment by the Corporate Debtor was established beyond doubt. Consequently, the application was admitted under section 9(5) of the IBC, 2016.3. The Tribunal appointed an Insolvency Resolution Professional (IRP) since the Applicant had not named one. Mr. Bikram Singh Gusain was appointed as the IRP, subject to certain conditions and disclosures. The Operational Creditors were directed to deposit a sum of Rs. 2 lakhs with the IRP to meet expenses. The moratorium period, as per Section 14(1) of the Code, was imposed on the Corporate Debtor, with specific provisions coming into force during this period. The order was communicated to the Applicant, Corporate Debtor, and IRP, with additional copies sent to relevant authorities for record-keeping and compliance purposes.