2020 (1) TMI 1260 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor has committed default in payment of outstanding debt - Existence of debt and dispute or not - HELD THAT - It is not in dispute that supplies have been made before 2010. As per the purchase order both supplies and erection are included in the scope of work. It is also not in dispute that more than 90% payment of the invoices raised by the Operational Creditor has been made by the Corporate Debtor. From all the correspondences which we have carefully perused it is apparent that there exists a claim of Corporate Debtor as regards non-performance / timely / satisfactory performance by the Operational Creditor which has caused substantial loss to the Corporate Debtor. It is also noted that the assertion made by the Corporate Debtor as regards it s admission of debt to the tune of 10% of the outstanding amount has to be seen in the facts and circumstances of the case as a whole wherein a stale claim has been sought to be revived and where the performance of the Operational Creditor itself is not found to be completed which in itself raises a question mark whether any debt is in fact due and payable. The Corporate Debtor has taken a plea that notice was not served on the registered office but on the corporate office hence it could not be considered a proper service. However the fact remains that the plea was not taken during the course of hearing at the first instance; even otherwise notice has been served on the corporate office of the Corporate Debtor which is an admitted fact and also Rule provides for service of notice through e-mail as well hence we do not find any merit in this technical objection taken - the Corporate Debtor has also relied on certain judicial decisions which were not cited during the course of hearing hence we did not take cognizance of the matter as the other party has not been given an opportunity to counter the same. Petition dismissed.

Summary

Issues Involved:
1. Competency of the person filing the petition.
2. Existence of debt and liability to pay.
3. Whether the debt is barred by limitation.
4. Dispute regarding the debt and its acknowledgment.

Detailed Analysis:

1. Competency of the Person Filing the Petition:
The petition was signed and filed by an authorized representative of the Operational Creditor, who was deemed competent to do so. The Tribunal referenced the case of Uco Bank Vs. Kaizen Power Limited, emphasizing that the authorization by the financial creditor was sufficient for filing the application. The Tribunal rejected the argument that the absence of a signature on the last page of Form No. 1 invalidated the petition, noting the presence of a signature at the bottom of the page and documentation confirming the representative's authority.

2. Existence of Debt and Liability to Pay:
The Tribunal examined whether there was a contractual liability to pay and whether the debt was due and payable. It was established that the Corporate Debtor had acknowledged the debt in various correspondences and meetings, and more than 90% of the payment had been made. However, the Tribunal noted that the Corporate Debtor claimed non-performance by the Operational Creditor, which caused substantial losses. The Tribunal highlighted that the performance issues raised a question about whether any debt was indeed due and payable.

3. Whether the Debt is Barred by Limitation:
The Tribunal extensively discussed the application of Section 18 of the Limitation Act, 1963. It was argued that the debt was barred by limitation as the acknowledgment letter was beyond the original three-year period. However, the Tribunal cited several cases, including Uco Bank Vs. Kaizen Power Limited and Kotak Mahindra Bank Limited Vs. M/s. Sri Balaji Metals and Minerals Pvt. Ltd., to establish that the presentation in financial statements and other acknowledgments extended the limitation period. The Tribunal concluded that there was a continuous cause of action and that the acknowledgment of debt resulted in the continuation of the limitation period before the original period expired.

4. Dispute Regarding the Debt and Its Acknowledgment:
The Corporate Debtor argued that there were serious disputes regarding the delay in performance and consequential losses, which were substantiated by a civil suit filed in June 2018. The Tribunal noted that the acknowledgment letter was not unequivocal and that the debt was disputed. The Tribunal referenced the case of Innovative Industries, which stated that a debt becomes due and payable upon default, even if disputed. The Tribunal held that the existence of a dispute did not negate the fact that there was a debt due and payable.

Conclusion:
The Tribunal dismissed the petition, finding no merit in the arguments presented by the Corporate Debtor. The Tribunal emphasized that the acknowledgment of debt in financial statements and other documents extended the limitation period, and the existence of a dispute did not invalidate the debt. The petition was dismissed with no order as to costs, and the Registry was directed to communicate the order to the parties involved.