- (1.) This is a Petition which has been filed by the Petitioner claiming to be the 'Operational Creditor' of the respondent company who has been termed as a 'Corporate Debtor'. Perusal of Form 5 being application filed by the Operational Creditor to initiate the corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016 for brevity called 'IBC, 2016', discloses the following facts:-
(2.) The Corporate Debtor owes a sum of Rs. 97,50,240.65/- on account of seismic services provided by the Operational Creditor to the Corporate Debtor and the debt fell due on 5.1.2017 and the said amount has also been confirmed vide letter of balance confirmation by the Corporate Debtor issued on 5.1.2017. The relevant Form 5 filed as stated above also discloses that the demand notice in Form No. 4 with invoice in Form No. 3. as mandated under the Insolvency and Bankruptcy (Adjudicating Authority) Rules, 2016 has been filed along with certificate of balance confirmation dated 5.1.2017 and a copy of the statement of accounts from 1.4.2016 till 22.03.2017 being proximate to the date of filing as in the books of Operational Creditor of the accounts of the Corporate Debtor. Further, letters of award issued to the Operational Creditor by the Corporate Debtor giving rise in the first place to the liability pertaining to the year 2010 has also been filed. The Operational Creditor has also named in the application filed before this Tribunal Mr. Atanu Mukherjee, as the Insolvency Professional registered with registration number IBBI/IPA-IP/00088/2016-17/1097 to act as an Interim Insolvency Professional and it is seen that the said named professional has also submitted in Form No. 2 of the Adjudicating Authority Rules, 2016 his consent to act as professional along with relevant certificate of registration. In terms of Rule 7(2) of the Adjudicating Authority Rules, 2016 the Operational Creditor has also filed proof of dispatch of the application by speed post to the Corporate Debtor dated 30.03.2017.
(3.) The matter was listed before this Tribunal for the first time on 13.4.2017 on which date both the parties were represented by their respective Counsels. In relation to the liability as claimed by the Operational Creditor against the Corporate Debtor wherein on a poser of this Tribunal, if reply, if any was sought to be filed negating the same, the Counsel for the Corporate Debtor repeatedly stressed that the Company is unable to pay the amounts claimed by the Operational Creditor as it is in the process of revival and hence will require time. However, this Tribunal thought it fit to give an opportunity to the Corporate Debtor to file its reply and post the matter on 19.4.2017. However, on the said date to the reply as directed by this Tribunal was not forthcoming from the Corporate Debtor. However, again on the said date also the Counsel for the Corporate Debtor stated that the Company is in the process of revival of itself and sometime be granted to it for repayment of the liability owed to the 'Operational Creditor'. We apprised the Counsel for the Corporate Debtor that this Tribunal is duty bound to dispose of the matters filed under IBC within a period of 14 days and hence cannot keep on extending the time in order to enable the Corporate Debtor to settle the dues which are admitted by it and which necessarily connotes that the Corporate Debtor is unable to pay the liability it owes and in the circumstances is commercially not solvent even to meet its current liability. The Counsel for the Corporate Debtor has also not adduced any proof before us to come to a contrary conclusion. Further, revival scheme as sought to be projected before this Tribunal for the revival of the Company/'Corporate Debtor' has also not been filed to establish the claim, all of which connotes that it is a sham.;