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Judgment
Per: Ajay Kumar Vatsavayi, Member (Judicial)
The present petition is filed, under section 9 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC'/Code), R/w. Rule 6 of the I&B (Application to Adjudicating Authority) Rules 2016, by M/s. Gupshup Technology India Pvt Ltd (for brevity 'Operational Creditor/Petitioner') inter alia seeking to initiate Corporate Insolvency Resolution Process in respect of M/s. Ikontel Solutions Pvt Ltd (hereinafter referred as 'Corporate Debtor/Respondent).
The Corporate Debtor viz., M/s. Ikontel Solutions Pvt Ltd is a Company incorporated on 08.01.2014 having CIN: U72400KA2014PTC072933 having its registered office situated at No.2, 2nd Floor 17th Cross, Near Sampige Main Road, Malleshwaram, Bangalore - 560003, which falls within the territorial jurisdiction of this Adjudicating Authority. The Nominal Share Capital of the Respondent/Corporate Debtor is Rs.1,00,000/- and the Paid-up Share Capital is Rs.1,00,000/-.
The present application has been filed by the Operational Creditor against the Corporate Debtor in respect of the default amount of Rs.2,71,24,800/- (Rupees Two Crore Seventy One Lakh Twenty Four Thousand Eight Hundred only) as on 30.04.2016.
The Petitioner and the Respondent Company i.e. Ikontel, a partnership firm entered into a Business agreement on 17.01.2014 which was executed to provide services immediately. It is stated that the Respondent before becoming a party of it informed the Petitioner that it is in the process of registering itself with the ROC. But the Respondent had already been registered with the ROC Bangalore on 08.01.2014, thus having already been registered and signing an agreement with the Petitioner in individual capacity indicates that the Respondent was intentionally misleading them with some malicious intention.
It is further stated that on 01.04.2015 the Petitioner and the Respondent Company entered into a renewed agreement, in the name of Ikontel, only. Further, the Respondent had requested the Petitioner to transfer the Ikontel partnership account profile to Ikontel Solutions Pvt Ltd through email dated 14.07.2015. Pursuant to the requests of the Respondent the Petitioner had supplied and delivered the request number of SMS to which Respondent had no objection in terms of price and service quality.
It is stated that the Petitioner had raised a total of Rs.57,022,183/- in invoices till now out of which the Respondent had made part payment of Rs.38,141,950/- deducting which, the balance principal of Rs.1,88,80,233/- along with the interest of Rs.82,44,567/- remained due to the Petitioner. Despite several reminders by Petitioner, the Respondent failed to clear the outstanding amount that carried 18% interest and the Petitioner issued Demand Notice dated 26.05.2018. However, the Respondent vide email dated 31.05.2018 admitted that the liability falls upon him and requested to compromise rather than going to court with payment proposal of Rs.10,00,000/- every month, which was never fulfilled till date and an assurance that the Respondent is willing to pay.
Further, the Petitioner has repeatedly sent many email demanding payment from the Respondent. The Petitioner relies upon the emails from the Respondent dated 01.12.2017 to 21.06.2018 and 13.03.2019, wherein it admits its liability and thus request time to make the required payment. The Respondent on accepting its liability to pay the Petitioner had issued them post-dated cheques in discharge of its liability to pay the amount. The issued cheques bounced due to insufficient funds in the account of the Respondent; the Petitioner thus, adopted appropriate proceedings U/s 138 of Negotiable Instruments act.
Thereafter, the Petitioner filed a Petition U/s 9 of the IBC, Code against the Respondent on 03.08.2018. The Respondent appeared and made an offer of Rs.10 Lakh to settle the debt, which is also an admission of liability. Later, the Respondent filed a Statement of Objection dated 30.08.2019 arguing that the Agreement dated 17.01.2014 was between the Petitioner and Ikontel Partnership Firm and thus the Respondent did not owe anything to the Petitioner since there is no formal agreement. In pursuant to that the Petitioner filed a rejoinder dated 16.10.2019 relying upon the emails by the Respondent wherein it is established that the Respondent and not any other firm, owes the Petitioner. However, due to unavailability of the agreement dated 01.04.2015 and of the post-dated cheques, the Petition was dismissed by this Adjudicating Authority and allowed the Petitioner to file a new Petition along with the missing evidence. Hence, the instant Company Petition.
Heard Shri Arjun Rao, the learned Counsel for the Petitioner and Shri Thomas Peter, learned Counsel for the Respondent and have also perused the pleadings carefully.
On 01.02.2022 the following order was passed:
1.Heard Mr. Arjun Rao, learned Counsel for the Petitioner and Mr. Thomas Peter, learned Counsel for the Respondent.
2.On 04.01.2022, the following order was passed:
"1.Heard Shri Arjun Rao, learned Counsel for the Petitioner and Shri Thomas V Peter, learned Counsel for the Respondent/Corporate Debtor.
2.On 01.12.2021, the following order was passed:
"Heard Shri Arjun Rao, learned Counsel for the Petitioner and Shri Thomas V Peter, learned Counsel for the Respondent/Corporate Debtor. On 29.10.2021 the following order was passed:
"Heard Mr. Arjun Rao, learned Counsel for the Petitioner and none appeared for the Respondent.
On 06.07.2020 one Mr. Thomas V Peter has appeared for the Respondent/Corporate Debtor, again on 17.09.2021 one Mr. Kumar Ram, has appeared for the Respondent/Corporate Debtor. However, till date no reply has been filed by the Respondent/Corporate Debtor. As a final chance two weeks' time is granted to the Respondent/Corporate Debtor for filing reply, if any, failing which his right to file reply stand forfeited and the Company Petition will be decided based on the record available and rejoinder, if any, shall be filed by the Petitioner within one week from the date of receipt of the reply.
The learned Counsel for the Petitioner shall serve this order on Respondent/Corporate Debtor through Speed Post as well as by email and file an affidavit of service thereto well before the next date of hearing. List the case on 01.12.2021".
When the matter is taken up for hearing, Shri Thomas V Peter, learned Counsel appearing for the Respondent/Corporate Debtor seeks time to file reply. The Company Petition is pertaining to year 2020 and sufficient opportunity was already granted to the Respondent/ Corporate Debtor to file his reply. However, they have not chosen to file the same till date. Considering the request of the learned Counsel for the Respondent/Corporate Debtor, we grant two weeks' time for filing reply by the Respondent/Corporate Debtor failing which, they are liable to pay Rs.25,000/- to the Prime Minister's National Relief Fund. The Petitioner shall file rejoinder, if any, within one week from the date of receipt of a copy of the reply.
List the case on 04.01.2022."
3.Shri Thomas Peter, learned Counsel appearing for the Respondent submits that one Mr. Sanjay Rawat, the person who is required to sign the Reply affidavit on behalf of the Respondent/Corporate Debtor tested positive for Covid-19 and accordingly seeks 15 days more time to enable him to file reply. He is permitted to file reply on or before 21.01.2022, after service on the other side. The Petitioner shall file rejoinder, if any, thereto within one week from the date of receipt of a copy of reply.
4.List the matter on 01.02.2022."
3.Since no counter is filed till date the right of the Respondent to file the counter is forfeited. However in view of the specific request made by the learned Counsel for the Respondent, both the Counsels are permitted to file written submissions but not more than four pages in total along with copies of the judgments on which they are placing reliance, if any, with proper index and pagination. Again, as per the specific request of the Respondent's Counsel, three weeks time for filing written submissions is granted.
4.Order Reserved.
The Respondent/Corporate Debtor miserably failed not only to file the reply opposing the CP, in spite of availing substantial time and opportunities, but also failed to file their written submissions for which permission was granted on the specific request of the learned Counsel who appeared for the Respondent/Corporate Debtor.
We have carefully examined the CP averments with reference to the various documents filed along with the same and found that the same is complete and the Petition proved the debt and the liability of the Respondent/Corporate Debtor to pay the same and accordingly the instant CP(IB)No.144/BB/2020 is admitted and moratorium is declared in terms of Section 14 of the Code. As a necessary consequence of the moratorium in terms of Section 14, the following prohibitions are imposed, which must be followed by all and sundry:
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;
Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein;
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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;
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 supply of essential goods or services to the Corporate Debtor as may be specified, shall not be terminated or suspended or interrupted during the moratorium period;
The provisions of Section 14(3) shall however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector 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 completion of the Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under sub-section (1) of Section 31 or passed an order for liquidation of Corporate Debtor under Section 33 as the case may be;
Vide a memo Diary No.11 dated 03.01.2022, Mr. Rajendrakumar Indrachand Jain, Registration No. IBBI/IPA-001/IP-P00232/2017-2018/10461 has been proposed as Interim Resolution Professional (IRP). However, since certificate of registration is not filed, the IRP shall file the same within one week from the receipt of this order.
The Law Research Associate of this Adjudicating Authority has checked the credentials of Mr. Rajendrakumar Indrachand Jain and there is nothing adverse against him. In view of the above, we appoint Mr. Rajendrakumar Indrachand Jain, bearing Registration No. IBBI/IPA-001/IP-P00232/2017-2018/10461, registered address at B-701, Geetanjali Bldg No.29, Kher Nagar, Bandra (E), Mumbai - 400051, [email protected], as the Interim Resolution Professional of the Corporate Debtor. The IRP is directed to take the steps as mandated under Sections 15, 17, 18, 20 and 21 of IBC, 2016.
The Interim Resolution Professional shall after collation of all the claims received against Corporate Debtor and the determination of the financial position of the Corporate Debtor constitute a Committee of Creditors and shall file a report, certifying constitution of the Committee to this Adjudicating Authority on or before the expiry of thirty days from the date of his appointment, and shall convene first meeting of the Committee within seven days for filing the report of Constitution of the Committee. The Interim Resolution Professional is further directed to send regular progress reports to this Adjudicating Authority every fortnight.
A copy of the order shall be communicated to both the parties. The learned Counsel for the Petitioner shall deliver a copy of this order to the Interim Resolution Professional forthwith. The Registry is also directed to send a copy of this order to the Interim Resolution Professional at his e-mail address forthwith.