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Judgment
PER SHRI L. N. GUPTA, MEMBER (T)
M/s. TCI International Logistics GMBH (for brevity ‘Applicant/ Operational Creditor’) has filed the present Petition 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 with a prayer to initiate the Corporate Insolvency Resolution Process against M/s. Logistics Linkage India Private Limited (for brevity ‘Respondent/Corporate Debtor’).
That the Corporate Debtor namely, M/s. Logistics Linkage India Private Limited is a Company incorporated on 11.05.1999 with CIN U63090DL1999PTC099706 under the provisions of the Companies Act, 1956 having its registered Office at Flat No. 109, Plot No. 4, 1st Floor, National Arcade, Ghazipur, Delhi - 110096, which falls within the jurisdiction of this Tribunal.
That the Authorized Share Capital of the Corporate Debtor is Rs.25,00,000/- and Paid-up Share Capital is Rs.24,72,000/- as per the Master Data of the Corporate Debtor annexed.
It is submitted by the Applicant that it is engaged in the business of handling and airlifting shipments by Air from Frankfurt, Germany to Air Port at Delhi. It is added that the Corporate Debtor has been involved in the logistics services and is collecting the goods lifted by the Operational Creditor by Air for Delhi, India.
It is stated by the Applicant that it had rendered services to the Corporate Debtor against various invoices. The details of the particulars of operational debt as provided in the Part IV of the application are reproduced below :
That from perusal of the Part IV of the Application, it is observed that the Applicant has claimed an operational debt of Rs.4,32,967/- only. It is further observed that the claims of the Applicant are based on invoices running from 02.11.2018 to 20.02.2019.
It is submitted by the Applicant that since the Corporate Debtor did not make the payment of his operational debt due and payable, it had issued a Demand Notice dated 04.12.2019 under Section 8 of IBC 2016 at the registered office of the Corporate Debtor vide speed post which was delivered to the Corporate Debtor on 05.12.2019. The Tracking Report of the delivery has been placed by the Applicant on record at page no. 72 of the application. The Applicant has averred that no reply to the demand notice has been received by him. The Applicant has filed the Affidavit under Section 9(3)(b) of IBC, 2016 stating that no notice of dispute has been received by it.
That during the course of hearing on 22.04.2022, the Operational Creditor has drawn our attention towards the email dated 17.12.2019 sent by the Corporate Debtor to the Applicant regarding arrangement of payment. The same is reproduced overleaf :
That on issuance of the notice, the Corporate Debtor has filed its reply. It is stated by the Corporate Debtor that there is a pre-existing dispute between the parties and the service of the Operational Creditor was defective in terms of timely delivery of goods to the Consignee.
That the following is averred by the Corporate Debtor in its reply :
“8.That the overall dispute is between Corporate Creditor and Consignee and terms are governing as per the German Freight Forwarder General Terms and Conditions 2017 Code on each INVOICE referred by the Corporate Creditor in second last para of the bottom of the invoice. It is further submitted that the Corporate Creditor in the Application neither mentioned about it relating the applicable law.”
After hearing submissions of both the parties and perusing the documents placed on the record, this Bench is of the view that the Corporate Debtor has failed to produce or bring any document of the period prior to the issuance of the demand notice on record, which could suggest that any dispute truly pre-exists between the parties. Further, as evident from the email dated 17.12.2019 to the Operational Creditor, Corporate Debtor itself has admitted its liability.
That from perusal of the pleadings and material on record, we are of the considered view that the Operational Creditor has established the default on the part of Corporate Debtor in payment of the operational debt. The Petition filed under Section 9 fulfills all the requirements of law. Therefore, the petition 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 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.”
As proposed by the Operational Creditor, this Bench appoints Mr. Ashok Kriplani as IRP having Registration No. IBBI/IPA-003/IP-N00009/2016-17/10071 (Email:[email protected]), subject to the condition that no disciplinary proceedings are pending against the IRP so named and disclosures as required under IBBI Regulations, 2016 are made by him within a period of one week from this Order. This Adjudicating Authority orders that :
“Mr. Ashok Kriplani as IRP having Registration No. IBBI/IPA-003/IP-N00009/2016-17/10071, (Email: ashok.kriplani1956 @gmail.com) 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 IRP is directed to take the steps as mandated under the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC, 2016.
The Operational Creditor is directed to deposit Rs.1,00,000/- (One 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 Interim Resolution Professional and shall be paid back to the Financial Creditor.
A copy of this Order shall be communicated to the Operational Creditor / Applicant, the Corporate Debtor and the IRP mentioned above by the Registry of this Tribunal.
In addition, a copy of the Order shall also be forwarded by the Registry/Court Officer to the IBBI for their records.