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2020 (10) TMI 7 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Debt or not - existence of debt and dispute or not - Service of notice - whether the demand notice in Form No.3 dated 08.03.2019 was properly served? - HELD THAT:- The demand notice dated 08.03.2019 was sent at the address as per the master data at Page No.22 of the petition in which the registered office is shown as Jalalabad Road, Muktsar, Punjab - 152026. Copy of the postal receipt along with tracking report and email are attached as Annexure-8 (Colly) of the petition. It is submitted that the Corporate Debtor has chosen not to reply to the demand notice dated 08.03.2019. Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- The respondent corporate debtor has neither filed any reply to the petition nor has disputed the liability towards the operational creditor. Thus, there is no dispute as to the liability between the corporate debtor and the operational creditor. It is also observed that till the last date of hearing, there has been no representation from the respondent-corporate debtor, hence the respondent can be proceeded ex parte and accordingly this CP may be admitted. Pre-existing dispute or not? - HELD THAT:- As a statutory requirement under Section 9(3)(b) of the Code, an affidavit dated 06.05.2019 (pages 20 & 21 of the petition) has been placed by the operational creditor stating that despite service of the demand notice dated 08.03.2019, till the date of filing of the present application, Corporate Debtor did not raise any dispute qua the outstanding payment and even no dispute was pending or arose by the corporate debtor qua the outstanding amount even prior to the sending the statutory demand notice dated 08.03.2019. We have held above that the demand notice in Form No.3 was properly delivered by the Operational Creditor and no pre-existing dispute is proved - It has been shown that the corporate debtor has failed to make payment of the ₹ 19,00,000/- as due after receiving payment of ₹ 8 lakhs vide two transactions, first an amount of ₹ 3 lakhs on 09.04.2019 and secondly ₹ 5 lakhs on 22.04.2019 till date. It is also observed that the conditions under Section 9 of the Code stand satisfied. The applicant-operational creditor states that from the abovementioned fact it is clear that the liability of the respondent-corporate debtor is undisputed. Accordingly, the petitioner proved the debt and the default, which is more than ₹ 1 lac by the respondent-corporate debtor. 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 process in the case of the Corporate Debtor M/s. Evershine Solvex Private Limited, is admitted - moratorium declared.
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