2022 (1) TMI 109 - Tri - Insolvency and Bankruptcy

Tribunal Admits Application for Insolvency Proceedings, Imposes Moratorium

The Tribunal admitted the Application under Section 9(5) of the Insolvency & Bankruptcy Code, 2016, appointing an Interim Resolution Professional and ... Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Operational Creditor has filed the list of purchase orders, invoices and the proof of dispatch of the same to the Corporate Debtor. Also the Operational Creditor has filed the email confirmation dated 15.11.2019 issued on behalf of the Corporate Debtor acknowledging their dues. Further, it is seen that the Corporate Debtor even after receipt of the Invoices have not raised any dispute in relation to the services provided by the Operational Creditor, however has failed to pay the sum to the Operational Creditor which is due and payable. Thus, the Operational Creditor has proved that there is an 'operational debt' and 'default' which has been committed on the part of the Corporate Debtor. Further, it is also pertinent to note that the default arising in the present Application is much prior to the advent of the Covid-19 pandemic and hence the Corporate Debtor cannot seek shelter also under Section 10A of IBC, 2016. The Petition as filed by the Operational Creditor is required to be admitted under Section 9(5) of the IBC, 2016 - Petition admitted - moratorium declared. Issues:Application under Section 9 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) against Corporate Debtor.Detailed Analysis:1. The Application filed under Section 9 of the IBC, 2016 by the Operational Creditor seeks to initiate the CIRP against the Corporate Debtor, a Private Limited Company. The Operational Creditor has not proposed the name of the Interim Resolution Professional, leaving it to the discretion of the Tribunal.2. The Operational Creditor was approached by the Corporate Debtor for the supply of computer peripheral materials. Despite some payments being made, payments are pending towards 43 invoices. The Application states a due amount of Rs. 2,01,23,650/- as of 30.04.2021, with the default date being 20.12.2018.3. Relevant documents supporting the operational debt and default are attached to the Application, including purchase orders, invoices, email correspondence, and the statement of accounts for the year 2017-2018. A Demand Notice was sent to the Corporate Debtor on 31.08.2020, followed by an Affidavit under Section 9(3)(b) of IBC, 2016.4. Despite multiple notices and publications, the Corporate Debtor did not appear during the proceedings. The Tribunal found that the Operational Creditor substantiated the operational debt and default. The Tribunal noted that the default predated the Covid-19 pandemic, making Section 10A of IBC, 2016 inapplicable.5. The Tribunal admitted the Application under Section 9(5) of the IBC, 2016, appointing an Interim Resolution Professional. The moratorium under Section 14(1) was imposed on the Corporate Debtor, restricting various actions related to its assets and legal proceedings. Essential supplies to the Corporate Debtor were to continue during the moratorium period.6. The duration of the moratorium was specified under Section 14(4) of the Code. The Operational Creditor was directed to pay a sum to the Interim Resolution Professional for expenses. The Application's admission triggered the moratorium, and relevant parties were informed accordingly.This detailed analysis covers the key aspects of the judgment, including the grounds for the Application, the Tribunal's findings, and the consequential orders issued regarding the initiation of CIRP and imposition of the moratorium.