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Judgment
Per:Rajeswara Rao Vittanala, Member (J)
C.P.(IB) No.371/BB/2019 is filed M/s. Symbiotic Automation Systems Private Limited, (‘Petitioner/Operational Creditor’) U/s 9 of the Insolvency and Bankruptcy Code, 2016 R/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. Dr.Wiesner Test &Automation Private Limited (‘Respondent/CorporateDebtor’) on the ground that it has committed default for total outstanding amount of Rs.15,15,997/- (Rupees Fifteen Lakh Fifteen Thousand and Nine Hundred and Ninety Seven Only).
Brief facts of the case, as mentioned in the Company Petition, which are relevant to the issue in question, are as follows:
M/s. Symbiotic Automation Systems Private Limited (herein after referred to as Petitioner/ Operational Creditor') is a Private Limited Company with CIN: U33121KA2006PTC038949 and having its registered office at (8^{\text{th}}) Cross, (4^{\text{th}}) Phase, Peenya Industrial Area, Bengaluru - 560 058.
M/s. Dr. Wienser Test & Automation Private limited (' hereinafter referred to Respondent/Corporate Debtor') was incorporated on 22.03.2011 under the provisions of Companies Act, 1956 with CIN: U33129KA2011PTC057783 and having its registered office at No.147, (6^{\text{th}}) Main, (3^{\text{rd}}) Cross, Industrial Suburb, (2^{\text{nd}}) Stage, Yeshwanthpur Industrial Layout, Tumkur Road, Bengaluru - 560 022. Its authorized Share Capital is Rs.2,40,00,000/- and the Paid-up Share Capital is Rs.2,40,00,000/-.
It is stated that the Petitioner is a registered company associated with providing customized solution of PLCs, variable frequency drives system, servo motors & drives system, soft starters, HMI, SCADA, and other miscellaneous products in the field of industrial automation. The Petitioner is well known in the field of industrial Automation for being a manufacturer of efficient and cost effective products and keeping this in mind the Corporate Debtor, in the year 2017 approached the Operation Creditor to purchase certain products. Further, the Petitioner supplied various products such as Analog Input Module, Communication Module, HMC, WINCCRT Advance IPC and other products to the Respondent during the year 2017-18. The Petitioner raised 9 invoices during the year 2017-2018 amounting to INR 19,18,061/-, out of which an amount of Rs. 15,15,997/- is current outstanding amount. Further, the Respondent has accepted the goods supplied by the Petitioner, and has neither raised any dispute relating to the quantity of goods, quality of goods nor in relation to the amount claimed in the invoices.
It is stated that the Respondent has defaulted to pay a total amount of Rs. 15,15,997/- to the Petitioner. As per the terms of the invoices, the Respondent was allowed a credit period of 90 days. After successful delivery of the goods, when amounts fell due, the Respondent requested more time to pay citing financial and operational problems. Thereafter, since the payments had not been made the Petitioner had issued many reminders to the Respondents regarding the payments due to it. The Petitioner through its Managing Director had issued an email dated 09.01.2018 reminding the Respondent the amounts due and the facts that none of the outstanding invoices has been cleared. The Respondent replied to the above email admitting the debt and further assured the Petitioner that the outstanding amount would be cleared. Further on 04.10.2018 the Petitioner sent another email, stating that the total amount due was broken down and further highlighted the number of days of the said amounts have been due. The Respondent chose to ignore the said email and did not reply to the same.
It is stated that the malafide of the Respondent are apparent, as they have not raised any dispute as to the Quantity or Quality of the goods supplied to them, further they have admitted the debt due and have not raised any dispute in so far as the amount of the invoices are concerned and further the Respondent has chosen not to pay the Petitioner the admitted outstanding amount. The Petitioner on 02.04.2019 issued a notice under Form-4 with which invoices, demanding payment. Though the same has been delivered to the Respondent, the Respondent has failed and defaulted to make payment of the amounts due and to reply to the said notice.
Heard Mr. AdithJahgirdar learned Counsel for the Petitioner. None appeared for the Respondent though several opportunities were given.We have carefully perused the pleadings of the Party, and the extant provisions of the Code.
Mr. AdithJahgirdar learned Counsel for the Petitioner, while reiterating various averments made in the Company petition, as briefly stated supra, has further submitted that the instant petition was filed on 19.08.2019, was listed before this Adjudicating Authority on 11.11.2019 when the Adjudicating Authority was pleased to direct the Registry to prepare a notice and directed the Counsel for the Petitioner to personally serve it on the Respondent. He has personally attempted to serve the notice on the Respondent, however, despite relentless efforts, the Respondent not chosen to accept the same. He has also personally attempted to serve the notice to the Respondent at its registered office, however the office has been locked and deserted. Further the Petitioner approached one Mr. Nagbhushan Krishnamurthy, one of the Directors of Dr. Wiesner Test & Automation Private Limited at his residence on 16.12.2019 at about 12.00 p.m. However, he refused to accept the notice despite being made aware of his required presence before this Hon'ble Tribunal as per its directions. With no other alternative the Petitioner was constrained to serve the notice on the Respondent via email, which including both the notice and the entire petition. Further as per the Directions of this Hon'ble Tribunal another attempt was made to serve the notice to the Respondent through Nagbhushan Krishnamurthy, Director of the Respondent at his resident on 27.12.2019 at about 3.00 p.m Mr. Nagbhushan Krishnamurthy again refused to accept the notice. With no other alternative, the Petitioner filed an application under Order V Rule 20 (1-A) of the code of Civil Procedure, 1908 r/w Rule 11 of the NCLT Rules, 2016, for substituted service of notice by way of paper publication. This Hon'ble Tribunal was pleased to allow the same and paper publication was taken out in 'The Hindu' daily newspaper on 14.02.2020. Despite this, the Respondent failed to make an appearance before this Hon'ble Tribunal. Further it is pertinent to note that the Respondent is still an active company and is non-compliant in so far as not filing balance sheet since the period ending March 31st 2017.
He has further submitted that the instant petition is filed in accordance with law, and a qualified Insolvency Professional namely Shri AddankiHaresh having Regn.No.IBBI/IPA-001/IP-P-01064/2017-18/11757 is proposed to appoint him as Interim Resolution Professional (IRP). He has also given Form-2 in Written Communication and also filed an Affidavit dated 28.06.2019, by inter alia stating that he is a qualified Insolvency Professional having Registration Regn.No.IBBI/IPA-001/IP-P-01064/2017-18/11757, and no disciplinary proceedings are pending against himwith the Board or ICAI Insolvency Professionals Agency.
The above facts and circumstances clearly established that debt and default in question admittedly are not in dispute. The Respondent for the reasons best known to it, it did not care about the proceedings pending before this Tribunal. Therefore, the Respondent is not only deemed to be default of the claim made in the instant Petition but it should also deemed to be prima facie insolvent. The service on the Respondent deemed to be concluded. The instant Application is filed in accordance with law and a qualified Insolvency Professional is also suggested to appoint him as IRP, who is prima facie eligible to be appointed as such. Therefore, we are of the considered opinion that it is a fit case for admission to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, appointing IRP, Moratorium etc., as per the Code.
In the result, by exercising powers conferred on this Adjudicating Authority, under Section 9(5)(i) and other extant provisions of the Code and the Rules made thereunder, C.P. (IB) No.371/BB/2019 is hereby admitted with the following consequential directions:
We hereby appointed Shri AddankiHaresh with Regn.No.IBBI/IPA-001/IP-P-01064/2017-18/11757 as the Interim Resolution Professional (IRP) to conduct the Corporate Insolvency Resolution Process (CIRP) in respect of the Corporate Debtor namely M/s. Dr. Wiesner Test & Automation Private limited to carry out the functions as mentioned under the I&B Code, 2016 and the Rules framed by the IBBI from time to time.
The following moratorium is declared prohibiting all of the following, namely:
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 Securitization 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.
e. The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period.
f. The provisions of sub-section (1) shall not apply to such transaction as may be notified by the Central Government in consultation with any financial regulator.
g. The order of moratorium shall have effect from the date of such order till the completion of the Corporate Insolvency Resolution Process.
The IRP is directed to follow all extant provisions of the IBC, 2016 and the Rules including fees rules as framed by the IBBI from time to time.
The Board of Directors and all the staff of the Corporate Debtor are hereby directed to extend full co-operation to the IRP, in carrying out his functions as such, under the Code and Rules made by the IBBI.
The IRP is directed to file his progress reports to the Tribunal from time to time about the steps taken in pursuant to the CIRP. The IRP is further directed to take expeditious steps so as to complete the process of CIRP within the stipulated time.
Post the case for report of the IRP on 24th April 2020.