2022 (11) TMI 156 - Tri - Insolvency and Bankruptcy

Tribunal Grants Petition for Moratorium & Appoints Interim Resolution Professional

The petition was allowed, and the Tribunal directed a moratorium under Section 14 of the Insolvency and Bankruptcy Code, including the suspension of ... Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - service of demand notice - whether the demand notice dated 13.01.2020 was properly served? - HELD THAT:- The demand notice sent at registered address of the respondent/corporate debtor, as available on the master data of the corporate debtor, was delivered and tracking report showing its delivery has also been annexed with the petition. Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- The petitioner/operational creditor has filed an affidavit dated 28.01.2020 (Annexure A-9) under Section 9(3)(b) of the Code, wherein it has been deposed that after service of demand notice on the respondent/corporate debtor, neither any payment has been received from the corporate debtor nor the corporate debtor has provided proof of payment within the meaning of Section 8(2)(b)(ii) of the Code, nor there is any reply received from the corporate debtor in response to the demand notice objecting to the demand leading to inference that the demand and the documents are correct and admitted by the corporate debtor. Also, it is deposed that there is no pre-existing dispute with respect to the subject matter of the present petition. Whether this application was filed within limitation? - HELD THAT:- A perusal of the case file shows that the application was filed vide Diary No.887 dated 03.02.2020, and the date of default is 20.09.2019 i.e. the date by which the outstanding invoices dated 22.07.2019 were to be cleared. Therefore, this Adjudicating Authority finds that this application has been filed within limitation. The operational creditor has provided the details of the debt due and has also annexed with the petition copy of ledger account statement, and invoices. Accordingly, the petitioner/operational creditor has established the debt and the default, which is more than Rupees one lakh i.e. the threshold limit (pre-revised) - It is noted that the corporate debtor has failed to make payment of the aforesaid amount due as mentioned in the statutory notice till date. Thus, the conditions under Section 9 of the Code stand satisfied. It is evident from the above-mentioned facts that the liability of the corporate debtor is undisputed and established. Also, there is no rebuttal to the claim filed by the petitioner as respondent/corporate debtor chose not to appear. Accordingly, the petitioner has proved the debt and the default which is above threshold limit. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the petitioner. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, instant petition is admitted - moratorium declared. Issues Involved:1. Proper service of demand notice.2. Dispute of operational debt by the corporate debtor.3. Filing of application within the limitation period.4. Completeness of the application.5. Satisfaction of conditions under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC).6. Directions regarding moratorium.7. Appointment and directions to the Interim Resolution Professional (IRP).Detailed Analysis:1. Proper Service of Demand Notice:The first issue considered was whether the demand notice dated 13.01.2020 was properly served. The Tribunal found that the demand notice was sent to the registered address of the corporate debtor and was delivered, as evidenced by the tracking report annexed with the petition.2. Dispute of Operational Debt by the Corporate Debtor:The next issue was whether the operational debt was disputed by the corporate debtor. The operational creditor filed an affidavit stating that no payment or proof of payment was received from the corporate debtor after the service of the demand notice. Furthermore, there was no reply or objection from the corporate debtor, leading to the inference that the demand and documents were correct and admitted by the corporate debtor. There was no pre-existing dispute regarding the debt.3. Filing of Application within Limitation Period:The Tribunal examined whether the application was filed within the limitation period. The application was filed on 03.02.2020, and the date of default was 20.09.2019. The Tribunal found that the application was filed within the limitation period.4. Completeness of the Application:The Tribunal reviewed the contents of the application filed in Form 5 and found it to be complete. The operational creditor provided details of the debt due and annexed the ledger account statement and invoices. The total unpaid operational debt was Rs. 5,59,673/- plus interest @ 24% p.a., amounting to Rs. 34,592/-.5. Satisfaction of Conditions under Section 9 of the IBC:The Tribunal noted that the corporate debtor failed to make payment of the outstanding amount mentioned in the statutory notice. The conditions under Section 9 of the IBC were satisfied, as the liability of the corporate debtor was undisputed and established. The corporate debtor did not appear to rebut the claim, and the petitioner proved the debt and default, which was above the threshold limit.6. Directions Regarding Moratorium:The Tribunal directed a moratorium in terms of Section 14 of the IBC, which included:- Suspension of suits or proceedings against the corporate debtor.- Prohibition on transferring or disposing of the corporate debtor's assets.- Prevention of actions to foreclose or enforce security interests.- Continuation of supply of essential goods or services to the corporate debtor.The moratorium would be effective from the date of the order until the completion of the CIRP or approval of a resolution plan or liquidation order.7. Appointment and Directions to the Interim Resolution Professional (IRP):The Tribunal appointed Ms. Pooja Damir Miglani as the Interim Resolution Professional (IRP) and issued several directions:- The IRP's term of appointment would be in accordance with Section 16(5) of the IBC.- The IRP was directed to file written consent in Form-2 within one week.- The IRP would take over the management of the corporate debtor and exercise all powers vested in the IRP.- The IRP was instructed to make a public announcement, prepare an inventory of assets, and constitute a Committee of Creditors (CoC).- The IRP was required to send regular progress reports to the Tribunal every fortnight.The petitioner was directed to deposit Rs. 60,000/- with the IRP to meet immediate CIRP expenses, which would be reimbursed by the CoC.Conclusion:The petition was allowed and admitted, and the Tribunal directed communication of the order to both parties and the IRP. The Registry was instructed to send a copy of the order to the IRP via email.