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Judgment
O R D E R
This is an application filed on 05.03.2020 under Section 9 of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as I & B Code) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as Rules) by the applicant M/s. ABHEESNAIR ENGINEERING PRIVATE LIMITED (hereinafter referred to as ‘Operational Creditor/Applicant’) through its Director Shri. Sethumadhavan against M/S NAMBUDIRISONS AGRO FOODS INDIA PRIVATE LIMITED (hereinafter referred to as ‘Corporate Debtor’) having its Registered Office at 1st Floor, 32/938, Pallissery Road, Thammanam P.O, Cochin, Ernakulam- 682 032, Kerala.
The brief facts of the case are as under:
Vide letter dated 15.09.2017, the Operational Creditor was appointed as a Super Stockiest of the Corporate Debtor. The Super Stockiest Agreement has been produced in Page 51-63 of the application. The Operational Creditor paid advance amounts as demanded by the Corporate Debtor. However, on 01.08.2018, the Super Stockiest Agreement got terminated.
The Operational Creditor submitted that on termination of the Super Stockiest Agreement, the Corporate Debtor, after adjustments, is liable to return a sum Rs. 25,24,067/- (Rupees Twenty-Five Lakhs Twenty-Four Thousand and Sixty-Seven Only). Through various email communications the corporate Debtor admitted its liability of ₹ 25,24,067/-. Most of the email communications are produced by the Operational Creditor. The Corporate Debtor also issued post-dated cheques which were dishonoured on submission for payment.
Copy of Cheque No: 000345 dated 15.12.2018 for ₹2,62,000/-, Cheque No: 000343 dated 01.01.2019 for ₹2,62,000/-, Cheque No: 000350 dated 28.03.2019 for ₹ 5,00,000/-, Cheque No: 000348 dated 31.03.2019 for ₹ 7,00,000/-, Cheque No: 000349 dated 01.04.2019 for ₹ 8,00,000/- along with respective cheque dishonour memos are produced in Page Nos. 64-68 of the application.
The Operational Creditor issued a legal notice dated 25.04.2019 states that the Operational Creditor will proceed under Section 138 of the Negotiable Instruments Act ,1881.
Due to continuous failure of the Corporate Debtor to honour its commitments, the Operational Creditor issued a statutory notice dated 18.01.2020 to the Corporate Debtor at its registered office through Registered Post and email under Section 8 of the Insolvency and Bankruptcy Code 2016 demanding payment of Rs. 25,24,067/- (Rupees Twenty-Five Lakhs, Twenty-Four Thousand and Sixty-Seven Only) requesting to repay the unpaid Operational Debt in full within 10 days from the date of receipt of the Demand Notice. However, there was no response from the Corporate Debtor.
The learned counsel for the Operational Creditor stated that it is, therefore, evident that despite the expiry of 10 days from the date of service of the demand notice, neither the Corporate Debtor disputed the debt nor paid the due amount to the Operational Creditor, which clearly shows that the Corporate Debtor is not able to pay its debts occurred on account of the normal course of business. Hence, the Operational Creditor filed this Application to initiate Corporate Insolvency Resolution Process, declaring Moratorium and appointment of Interim Resolution Professional under Section 9 of the Code.
The Operational Creditor issued notice to the Corporate Debtor and produced proof of sending notice. The Registry of this Tribunal also issued notice to the Corporate Debtor intimating about the application filed under the I & B Code directing them to appear before this Tribunal on 18.10.2019. However, the notice to Corporate Debtor returned with the postal remarks that ‘addressee not found’. This Tribunal vide order dated 23.06.2020 directed the Operational Creditor to send notice to the Corporate Debtor through email. It was also directed to issue paper publication in two largely circulated local dailies (one each in English and Malayalam) and submit proof of such publication. The Operational Creditor filed an affidavit stating that the email
issued to Corporate Debtor bounced back with the reason “because the domain namboothiris.in could not be found.” They have also filed proof of making paper publication in Indian Express Newspaper in English and Deepika Newspaper in Malayalam. Even after the aforesaid publication, the Corporate Debtor has neither appeared before this Tribunal nor made representation on behalf of them on the dates 05.10.2020 and 04.11.2020. Therefore, the learned counsel for the Operational Creditor was heard and the matter was taken for orders.
In the absence of Corporate Debtor, we have relied on Section 5 (20) and (21) of the Insolvency and Bankruptcy Code, 2016 to satisfy that the definition of Operational Creditor and Operational Debt. Further we relied on Section 9 (3) (a) (b) (c) of the Code to determine whether process for initiation of CIRP was followed by the Operational Creditor or not. On verification of records, it is noted that the claim amount in this application is Rs 25,24,067/- and the cause of action arose before March 2020. Therefore, in all counts the instant Application deserves to be Admitted.
For the aforesaid reasons, this Tribunal is of the view that the present application is complete and the Applicant is entitled to claim its dues, which remain unpaid by the Corporate Debtor. In the light of above facts and on perusal of the documents annexed to the Application, the. IBA/24/KOB/2020 is Admitted in terms of Section 9(5) of I & B Code and moratorium as envisaged under the provisions of Section 14(1) and as extracted hereunder shall follow in relation to the Corporate Debtor prohibiting all of the following:-
a)the institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority;
b)transferring, encumbering, alienating or disposing off by the Corporate Debtor any of its assets or any legal right or beneficial interest therein;
c)any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;
d)the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor.
It is further directed that the services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period. The moratorium shall however not apply to such transactions as may be notified by the Central Government in consultation with any financial regulator and to a surety in a contract of guarantee to a Corporate Debtor.
The order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under Sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, as the case may be.
That the public pronouncement of the Corporate Insolvency Resolution Process shall be made immediately as specified under Section 13 of IBC.
The Operational Creditor has not suggested any name for appointment as the Interim Resolution Professional. Hence this Bench appoints Mr. MOHANAN T. S having registration No.IBBI/IPA-001/IP-P-01691/2019-2020/12624 (Email: [email protected] (address- THEKKINATHIL HOUSE, VALAYANCHIRANGARA P.O, VENGOLA, PERUMBAVOOR, ERNAKULAM Dist, KERALA- 683 556.) as Interim Resolution Professional to carry the functions as mentioned under the IBC, the fee payable to IRP/RP shall comply with the IBBI Regulations/Circulars/Directions issued in this regard. The Insolvency Resolution Professional is directed to submit the copy of AFA (Authorization for Assignment) issued by the Insolvency Professional Agency within 2 days from the date receipt of this order.
The Registry is directed to immediately communicate this order to the Operational Creditor, the Corporate Debtor in the address available on records and the Interim Resolution Professional.