Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2021 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (9) TMI 926 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational creditors - existence of debt and dispute or not - dispute with regard to demand notice - HELD THAT - It is not that anybody has come on behalf of Operational Creditor to object to the manner in which the resolution was passed. On the basis of technicalities raised by the Corporate Debtor, it is not found that much weight can be given to the argument raised on this count. Dispute raised with regard to the notice under Section 8 of IBC or not - HELD THAT - The Notice is dated 11.12.2017 at Appeal page 87 to 89. The dispute raised is that this notice is not in format and as required under Section 8 read with Rule 5(a) of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 ( Rules in short). There is Form 3 below the Rules with regard to the format - For mere technicality that the notice should purport to be in the format (although sufficiently meeting the requirements of the format) we do not want to ascribe undue weight to such argument which is mere technicality. The Adjudicating Authority has rightly found that there are dues outstanding which attract Section 9 of IBC. The Appellant is trying to confuse by referring to portal of Icegate but when there are documents in favour of the Operational Creditor, it is not found that Appellant is able to show that the goods were not received and that the Corporate Debtor did not have any liability to pay. We do not find any fault with the impugned order admitting the Application under Section 9. Appeal dismissed.
Issues Involved:
1. Authority to file the application. 2. Validity of the demand notice. 3. Receipt of metal scrap by the Corporate Debtor. 4. Interest on the unpaid amount. 5. Non-filing of document confirming non-payment. 6. Procedural objections regarding the resolution and power of attorney. Issue-wise Detailed Analysis: 1. Authority to File the Application: The Corporate Debtor challenged the authority of Mr. Pratik D. Shah, who filed the application as the authorized representative of the Operational Creditor. The Adjudicating Authority referred to the resolution passed by the Board of Directors dated 04.12.2017, which authorized Mr. Pratik D. Shah to file the petition. The Tribunal found that the resolution was valid and the application could not be considered bad in law. The Tribunal also noted that the document titled "TO WHOMSOEVER IT MAY CONCERN" was signed and bore the stamp of the Operational Creditor, further validating the authority. The Tribunal dismissed the Corporate Debtor's argument based on technicalities and upheld the resolution's authenticity. 2. Validity of the Demand Notice: The Corporate Debtor argued that the notice dated 11.12.2017 did not qualify as a demand notice under Section 8 of the IBC. The Adjudicating Authority found that the notice, supported by necessary documents such as the sales contract, tax invoice, bill of lading, packing list, certificate of origin, certificate of weight, and declaration, met the requirements of Section 8(1). The Tribunal dismissed the argument that the notice was not in the prescribed format, emphasizing that it sufficiently met the statutory requirements. 3. Receipt of Metal Scrap by the Corporate Debtor: The Corporate Debtor contended that the metal scrap was not received. The Adjudicating Authority noted that the Corporate Debtor had never questioned the delivery of goods in prior communications. The Tribunal referred to documents such as the sales contract, tax invoice, bill of lading, packing list, certificate of origin, certificate of weight, and declaration, all bearing the stamp and signature of the Corporate Debtor, indicating receipt of the goods. The Tribunal dismissed the Corporate Debtor's argument as misleading and upheld the evidence of delivery. 4. Interest on the Unpaid Amount: The Corporate Debtor argued that there was no agreement regarding the rate of interest. The Adjudicating Authority referred to the Interest Act, 1978, and found no evidence that it was agreed there would be no interest charged. The Tribunal upheld the Adjudicating Authority's decision to discard the Corporate Debtor's defense on this count. 5. Non-filing of Document Confirming Non-payment: The Corporate Debtor claimed that the document confirming non-payment was not filed, as required under Section 9(3)(e) of the IBC. The Adjudicating Authority dismissed this objection, noting that the necessary documents were annexed with the notice and the application. The Tribunal found the reasons recorded by the Adjudicating Authority to be well-founded and upheld the decision. 6. Procedural Objections Regarding the Resolution and Power of Attorney: The Corporate Debtor raised procedural objections regarding the resolution passed by the Operational Creditor's directors and the power of attorney. The Tribunal referred to Section 85 of the Indian Evidence Act, 1872, and the judgment in "Jaldhi Overseas Pvt. Ltd. vs. Bhushan Power & Steel Limited," finding that the resolution was validly executed and authenticated. The Tribunal dismissed the objections, noting that no one from the Operational Creditor objected to the resolution's manner of passing. Conclusion: The Tribunal dismissed the appeal, finding no substance in the Corporate Debtor's arguments. The application under Section 9 of the IBC was admitted, and the Tribunal upheld the Adjudicating Authority's decision. The Tribunal emphasized the validity of the authority to file the application, the adequacy of the demand notice, the receipt of goods by the Corporate Debtor, and the legitimacy of the interest claim. The Tribunal also dismissed procedural objections regarding the resolution and power of attorney, affirming the Adjudicating Authority's findings.
|