2019 (12) TMI 1398 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed top make repayment of its dues - existence of debt and dispute or not - HELD THAT - The Balance Sheet dated 31.03.2016 of Corporate Debtor reflects the liability of Rs. 21, 262, 499/-against the secured loan in the name of IARC restructuring loan as annexed in Annexure-X. Further the Corporate Debtor in its reply stated that he has filed the last Balance Sheet for the financial year 2017-18 on 09.09.2019 and not filed the Balance Sheets for the year 2015-16 and 2016-2017. On perusal of the documents filed by the Financial Creditor it is observed by this Hon ble Tribunal that the financial statements are true and correct and it appears that futile attempt is sought to be made at the behest of the Corporate Debtor that he had not filed the financial statement for the year 2015-2016 and 2016-2017. Hence the Corporate Debtor is liable to pay the amount of Rs. 21, 262, 499/-. Also it is further observed that the Corporate Debtor and guarantors signed and executed a Balance Confirmation letter confirming a sum of Rs. 2, 45, 71, 976/- was due and payable by the Corporate Debtor to the Financial Creditor as on 31.01.2015. The Corporate Debtor has not replied in its reply for the allegation made by the Financial Creditor regarding execution of Balance Confirmation letter dated 31.01.2015 - It is clear from the letter dated 31.01.2015 that the Corporate Debtor acknowledges and confirms that Rs. 2, 45, 71976/-was due to the Financial Creditor as on 31.01.2015. Hence the Corporate Debtor is held liable for the same. The Hon ble Tribunal on perusal of the documents filed by the Financial Creditor is of the view that the Corporate Debtor defaulted in payment of restructured acquired loan and Financial creditor placed the name of the Insolvency Resolution Professional to act as Interim Resolution Professional and there being no disciplinary proceedings pending against the proposed resolution professional therefore the Application Section 7 is taken as complete and within the limitation. Petition admitted - moratorium declared.

Summary

Issues:
- Petition filed under Section 7 of the Insolvency & Bankruptcy Code, 2016 for Corporate Insolvency Resolution Process initiation.
- Default in repayment of restructured acquired loan amount.
- Validity of Demand/Recall Notice and acknowledgment of debt.
- Compliance with financial statement filing requirements.
- Appointment of Interim Resolution Professional.

Analysis:
1. The petition was filed under Section 7 of the Insolvency & Bankruptcy Code, 2016, seeking Corporate Insolvency Resolution Process initiation due to the respondent's inability to repay its financial debt. The petitioner, an Asset Reconstruction Company, acquired financial assets from the respondent, who defaulted on a loan amount of Rs. 5,22,85,492.94, leading to the petition for insolvency resolution.

2. The petitioner contended that the respondent repeatedly defaulted on payments despite availing benefits from a Restructuring Package. The respondent and guarantors acknowledged the due amount in a Balance Confirmation letter, further supported by a Notice of Demand and Recall of Outstanding dues. The respondent's liability was also reflected in the financial statements, justifying the initiation of insolvency proceedings.

3. The respondent raised objections, disputing the authenticity and service of the Demand/Recall Notice, and challenging the computation of debt based on the Limitation Act. The respondent also questioned the compliance with financial statement filing requirements, citing gaps in submission over certain years. However, the tribunal found these contentions unsubstantiated and upheld the petitioner's claims based on the evidence presented.

4. The tribunal reviewed the documents filed by the financial creditor and found the respondent liable for the outstanding debt based on the Balance Confirmation letter and financial statements. The default in payment of the restructured loan was established, leading to the appointment of an Interim Resolution Professional to oversee the insolvency resolution process.

5. The tribunal admitted the petition, confirming the appointment of the proposed Interim Resolution Professional, and instructed further steps to be taken in accordance with the Insolvency & Bankruptcy Code. The case was renotified for the IRP's report, emphasizing compliance with statutory provisions for the resolution process to proceed effectively.