2021 (6) TMI 854 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - time limitation - HELD THAT - Notice with respect to the application was issued to the Corporate Debtor vide order dated 03.03.2020 of the Adjudicating Authority. Further it has been observed that neither a reply to the Demand Notice nor to Section 9 application was filed by the Corporate Debtor. The Corporate Debtor has never appeared before the Adjudicating Authority hence vide order dated 12.01.2021 the Corporate Debtor was proceeded ex-parte. The date of default is 21.01.2019 which is the date of the last invoice issued which was unpaid and the present application is filed on 24.02.2020. Hence the application is not time barred and filed within the period of limitation - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. The Application filed by the Operational Creditor is complete in all respect. This authority is satisfied that an amount of Rs. 31, 32, 820/- towards unpaid invoices for the goods supplied by the Operational Creditor is due and payable by the Corporate Debtor to the Operational Creditor which it failed to pay. Therefore the Application is admitted and the commencement of the CIRP is ordered - Application allowed.

Summary

Issues:
1. Application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiating Corporate Insolvency process.
2. Failure of the Corporate Debtor to pay outstanding dues leading to the application.
3. Compliance with mandatory provisions by the Operational Creditor.
4. Jurisdiction of the Tribunal to entertain the application.
5. Admittance of the application and appointment of an interim resolution professional.
6. Imposition of moratorium under Section 14 of the Code.
7. Deposit required by the Applicant for immediate expenses.

Analysis:
1. The application was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016, by S.K. Enterprises to initiate the Corporate Insolvency process against Trikalp Laminates Private Limited. The Applicant, a partnership firm engaged in supplying various goods, claimed unpaid dues of Rs. 31,32,820 from the Corporate Debtor, who failed to make the payment outstanding since January 2019.

2. The Corporate Debtor had purchased goods from the Operational Creditor, and despite receiving and accepting the goods without disputes, failed to pay the outstanding dues of Rs. 22,67,134 along with interest. The demand notice was issued, and the Corporate Debtor did not respond, leading to the application for insolvency.

3. The Operational Creditor complied with all mandatory provisions of the Code, including issuing a demand notice and filing the application, which was complete in all respects. The Corporate Debtor did not reply to the demand notice or the application, leading to being proceeded ex-parte by the Adjudicating Authority.

4. The Tribunal had jurisdiction to entertain the application as the registered office of the Corporate Debtor was in Delhi. The application was filed within the limitation period, not being time-barred.

5. After considering the facts and circumstances, the Tribunal admitted the application, ordering the commencement of the Corporate Insolvency Resolution Process. An interim resolution professional was appointed to manage the process and file a report within 30 days.

6. A moratorium was imposed under Section 14 of the Code, preventing suits, transferring assets, foreclosing security interests, and ensuring the supply of essential goods or services is not interrupted during the process.

7. The Applicant was directed to deposit Rs. 2 lakhs to enable the IRP to meet immediate expenses, which would be reimbursed as costs of the CIRP. The order was communicated to all relevant parties and authorities for compliance and record-keeping.

This comprehensive analysis covers the key issues and details of the judgment delivered by the National Company Law Tribunal in New Delhi.