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2022 (9) TMI 1067 - Tri - 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 - Time Limitation - service of demand notice - whether the demand notice in Form 3 dated 21.01.2020 was properly served? - HELD THAT - The demand notice was served to the respondent/corporate debtor and in response to the same only, the respondent/corporate debtor vide its e-mail dated 26.01.2020 requested the petitioner for granting some more time to clear the outstanding amount. Whether the operational debt was disputed by the corporate debtor? - HELD THAT - The petitioner/operational creditor has filed an affidavit under Section 9(3)(b) of the Code, wherein it has been deposed that the no notice was given by the corporate debtor relating to a dispute of the unpaid operational debt. Thus, it can be inferred that there is no pre-existing dispute between the parties. Whether this application was filed within limitation? - HELD THAT - A perusal of the case file shows that the application was filed vide Diary No.01243 on 30.12.2020 (refiled on 12.01.2021), whereas the date of default is 31.07.2020, therefore, this Adjudicating Authority finds that this application has been filed within limitation. It is seen that the petition preferred by the petitioner is complete in all respects. 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, the petition for initiation of the CIRP in the case of the corporate debtor, Govind Electrica Private Limited is admitted - moratorium declared.
Issues Involved:
1. Proper service of demand notice. 2. Existence of any dispute regarding the operational debt. 3. Timeliness of the application. 4. Completeness of the application. 5. Satisfaction of conditions under Section 9 of the Insolvency and Bankruptcy Code, 2016. 6. Appointment of Interim Resolution Professional (IRP). 7. Declaration of moratorium. Issue-wise Detailed Analysis: 1. Proper Service of Demand Notice: The Tribunal examined whether the demand notice in Form 3 dated 21.01.2020 was properly served. It was found that the demand notice was indeed served to the corporate debtor, who responded via email on 26.01.2020 requesting more time to clear the outstanding amount, confirming proper service. 2. Existence of Any Dispute Regarding the Operational Debt: The operational creditor filed an affidavit under Section 9(3)(b) of the Code, asserting that no notice was given by the corporate debtor relating to a dispute of the unpaid operational debt. The Tribunal inferred that there was no pre-existing dispute between the parties, thus satisfying this condition. 3. Timeliness of the Application: The application was filed on 30.12.2020 (refiled on 12.01.2021), while the date of default was 31.07.2020. The Tribunal found the application to be within the limitation period, thus meeting the timeliness requirement. 4. Completeness of the Application: The Tribunal reviewed the application filed in Form 5 and found it to be complete. The operational creditor provided detailed accounts of the debt due, including invoices and reconciliation confirmations. The total unpaid operational debt was Rs. 2,72,61,664/-, which was above the threshold limit, proving the debt and default. 5. Satisfaction of Conditions under Section 9 of the Insolvency and Bankruptcy Code, 2016: The Tribunal noted that the corporate debtor had failed to make the payment even after the demand notice dated 21.01.2020. The corporate debtor's conduct, including seeking time to clear the outstanding payment, indicated admitted liability. The Tribunal concluded that the conditions under Section 9 were satisfied, and the liability was undisputed. 6. Appointment of Interim Resolution Professional (IRP): In the absence of a proposed IRP by the petitioner, the Tribunal appointed Mr. Pramod Kumar Misra as the IRP. His credentials were verified, and no adverse findings were noted. The IRP was directed to comply with the provisions of the Code, including taking control and custody of the corporate debtor's assets, and to file regular progress reports. 7. Declaration of Moratorium: The Tribunal declared a moratorium effective from the date of the order until the completion of the CIRP or until a resolution plan is approved or an order for liquidation is passed. The moratorium included the suspension of all suits and proceedings against the corporate debtor, prohibition on transferring or disposing of assets, and ensuring the supply of essential goods and services. Conclusion: The Tribunal found the petition to be complete and satisfying all conditions under Section 9 of the Code. The petition for initiating the Corporate Insolvency Resolution Process (CIRP) against the corporate debtor was admitted. A moratorium was declared, and Mr. Pramod Kumar Misra was appointed as the Interim Resolution Professional. The petitioner was directed to deposit Rs. 1,00,000 with the IRP for immediate CIRP expenses, to be reimbursed by the Committee of Creditors. The petition was allowed and admitted, and copies of the order were directed to be communicated to both parties and the IRP.
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