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Judgment
PER SHRI L. N. GUPTA, MEMBER (T)
The present Petition is filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity ‘IBC, 2016’) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by M/s. D. Light Energy Private Limited (for brevity ‘Applicant/Operational Creditor’), with a prayer to initiate the Corporate Insolvency Resolution Process against M/s. Benchmark Supply Chain Solutions Private Limited (for brevity ‘Respondent/Corporate Debtor’).
That the Corporate Debtor namely, M/s. Benchmark Supply Chain Solutions Private Limited is a Company incorporated on 04.04.2013 with CIN U74140DL2013PTC250296 under the provisions of the Companies Act, 2013 having its registered Office at B-62 Vishrantika Society, Sector-3, Plot No. 5A, Dwarka, New Delhi-110078, which falls under jurisdiction of this Tribunal.
That the Authorized Share Capital of the Corporate Debtor is Rs.2,00,00,000/- and Paid-up Share Capital is Rs.66,00,000/- as per the Master Data of the Corporate Debtor.
That the detailed particulars of the operational debt as averred by the Applicant in the Part IV of the Application are reproduced overleaf:
That from perusal of the Part IV of the Application, it is observed that the Applicant has supplied various solar products and appliances to the Corporate Debtor against the invoices. That total amount of the unpaid Operational Debt claimed by the Applicant amounts to Rs.1,10,90,977/- excluding interest. That the date of default mentioned by the Applicant in the application is of 06.01.2020.
That the Applicant has annexed the Invoices and Ledger Account of the Corporate Debtor with the application to establish the default.
It is submitted by the Applicant that the Corporate Debtor had sent a letter dated 20.03.2019 to the Operational Creditor wherein the Corporate Debtor had admitted the debt amounting to Rs.1,12,96,630/- and assured that the payment shall be made by 30th April 2019. However, in spite of several verbal assurances/written commitments, the Corporate Debtor did not make payment of the outstanding dues. Hence, the Operation Creditor was left with no alternative but to send a Demand Notice dated 27.11.2019 under Section 8 of IBC 2016 at the registered office of the Corporate Debtor vide courier which was delivered on 07.12.2019. The Applicant has further averred that no reply to the demand notice was received by him. The Applicant has filed an Affidavit under Section 9(3)(b) of 2016 stating that no notice of dispute has been received by it.
That on issuance of the notice, the Corporate Debtor has appeared and filed its reply.
However, during the course of final hearing held on 15.03.2022, Ld. Counsel appearing for the Corporate Debtor had admitted the debt claimed in the court and submitted that due to financial crisis, the Corporate Debtor is not in a position to pay the debt. The order dated 15.03.2022 is reproduced below :
“Heard the Ld. Counsel appearing for the Operational Creditor as well as the Corporate Debtor. During the Course of the hearing, the Ld. Counsel for the Corporate Debtor appears and submits that due to financial crisis, the Corporate Debtor has not been able to pay the debt.”
In the given facts and circumstances, when the Corporate Debtor has admitted the default in payment of the operational debt, we are inclined to proceed with the matter. The Application filed under Section 9 fulfills all the requirements of law. Therefore, the Application is admitted in terms of Section 9(5) of the IBC. Accordingly, the CIRP is initiated and moratorium is declared in terms of Section 14 of the Code. As a necessary consequence of the moratorium in terms of Section 14(1) (a), (b), (c) & (d), the following prohibitions are imposed, which must be followed by all and sundry:
“(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 of 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.”
Since there is no IRP proposed by the Operational Creditor, this Bench appoints Mr. Ajay Goyal (IBBI Registration No. IBBI/IPA-001/IP-P00328/2017-18/10639, Email : ajaygoyalca75 @gmail.com) as an IRP of the Corporate Debtor with immediate effect from the panel of the IPs recommended by IBBI to this Adjudicating Authority and order that:
“Mr. Ajay Goyal is directed to take charge of the CIRP of the Corporate Debtor with immediate effect. The Court Officer will inform the IRP so appointed by all modes.”
The Operational Creditor is directed to deposit Rs.2,00,000/-(Two Lakh) only with the IRP to meet the immediate expenses. The amount, however, will be subject to adjustment by the Committee of Creditors as accounted for by the Interim Resolution Professional and shall be paid back to the Operational Creditor.
A copy of this Order shall be communicated immediately to the Operational Creditor, the Corporate Debtor and the IRP named above, by the Registry/Court Officer. In addition, a copy of the Order shall also be forwarded by the Registry to IBBI for their record.