2022 (4) TMI 10 - Tri - Insolvency and Bankruptcy

Tribunal Declares Moratorium under Insolvency Code, Appoints IRP for Creditor Committee

The Tribunal admitted the petition, declaring a moratorium under Section 14 of the Insolvency and Bankruptcy Code. Ms. Sumana Rao was appointed as the ... Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - clubbing of two separate operational debts - time limitation - existence of the debt and the liability - pre-existing disputes between the parties in respect of the claimed debts or not - HELD THAT:- There is no bar under the IBC from filing a single C.P., so long as the Operational Creditor and the Corporate Debtor are the same and the total claim crosses the minimum threshold limit. In the present case, the claim satisfy the said requirement. Since the instant C.P. filed before enhancement of threshold limit to Rs. One Crore, there is no impediment in entertaining the same - Even as per the Respondent/Corporate Debtor, the last invoice with regard to the Project Nitesh Flushing Meadows was issued on 23.03.2015. The instant C.P. was filed on 09.01.2018, i.e. well within the limitation period of three years. Hence the C.P. is within limitation. The other amount claimed is pertaining to 5% retention amount retained by the Respondent. The retention money was liable to be released immediately after expiry of 12 months from the date of raising the last bill on completion of the work in respect of 'Nitesh Logos' project. The last invoice was raised on 07.03.2015, which was duly paid by the Respondent. Hence the limitation of 3 years for the unreleased retention money commences on 07.03.2016 and since the instant C.P. having filed on 09.01.2018, is well within limitation. Once the maximum period from the date of completion of the project expire, and when there was no specific demand from the Respondent to complete any unfinished work or to repair any defective finished work, subsequent to completion of work, the Respondent is liable to release the retention amount to the Petitioner. Simply mentioning defect in work without specifically linking the same for returning the retention money, cannot be treated as a pre-existing dispute with regard to the retention money. Petition admitted - moratorium declared. Issues Involved:1. Clubbing of two separate operational debts.2. Filing within the period of limitation.3. Existence of debt and liability to pay.4. Pre-existing disputes between the parties.Issue-wise Detailed Analysis:1. Clubbing of Two Separate Operational Debts:The Tribunal noted that there is no bar under the Insolvency and Bankruptcy Code (IBC) from filing a single petition as long as the Operational Creditor and the Corporate Debtor are the same and the total claim crosses the minimum threshold limit. In this case, the claim satisfies the requirement, and since the petition was filed before the enhancement of the threshold limit to Rs. One Crore, there is no impediment in entertaining the same.2. Filing Within the Period of Limitation:The Tribunal observed that the last invoice regarding the Nitesh Flushing Meadows project was issued on 23.03.2015, and the petition was filed on 09.01.2018, which is within the three-year limitation period. Regarding the retention amount for the Nitesh Logos project, the retention money was due for release 12 months after the last bill dated 07.03.2015, making the petition filed on 09.01.2018 within the limitation period.3. Existence of Debt and Liability to Pay:The Tribunal found that the work order dated 20.07.2011 was issued in favor of M/s. Sree Vinayaka Constructions and not the Petitioner, M/s. Sree Vinayaka Buildwell Projects Private Limited. No document was provided to show the contract was undertaken by the Petitioner Company, hence the Petitioner cannot maintain the claim for the Nitesh Flushing Meadows project. However, for the retention amount related to the Nitesh Logos project, the Tribunal noted that the Respondent had paid all dues except the retention amount. The Petitioner established the existence of debt for the retention amount of Rs. 4,58,277/- plus interest.4. Pre-existing Disputes:The Tribunal concluded that there were no pre-existing disputes regarding the retention money for the Nitesh Logos project. The Respondent did not issue any specific communication pointing out defects or incomplete work related to the retention money. Thus, the claim for the retention money was valid and not subject to any pre-existing dispute.Conclusion:The Tribunal admitted the petition and declared a moratorium in terms of Section 14 of the IBC. The prohibitions under the moratorium include the institution of suits, transferring assets, and recovery actions against the Corporate Debtor. Ms. Sumana Rao was appointed as the Interim Resolution Professional (IRP) and directed to take necessary steps under the IBC, including constituting the Committee of Creditors and filing regular progress reports.The Tribunal directed that a copy of the order be communicated to both parties and the IRP, with the Registry instructed to send a copy to the IRP's email address forthwith.