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2018 (4) TMI 1848 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - pre-existence of dispute or not - service of demand notice - HELD THAT - Perusal of the affidavit filed under Section 9(3)(b) clearly shows that even though the notice of default has been received by OC prior to the filing of this Petition and which incidentally has also been annexed as mentioned in the earlier part of the order, there seems to be a covert attempt on the part of the Petitioner at least at the stage of moving this Petition to not to state anything in Affidavit filed under Section 9(3)(b) of IBC, 2016 with a view not to have the Petition rejected outright taking into consideration Section 9(5)(ii)(d) of IBC, 2016. The affidavit thereby filed has stifled the truth in effect of the notice of dispute as sent by the CD and which had precluded the Tribunal from exercising its powers under Section 9(5)(ii)(d) of IBC, 2016 for rejection Of the Petition if thought fit and which subsequently had lead to issue of notice to CD and the attendant hearings of this Petition by this Tribunal. The attitude of the Petitioner in this regard stands strongly deprecated in invoking the provisions of IBC,2016 despite being aware that there is a dispute in existence and in any case that a notice of dispute is required to be brought to the notice of this Tribunal by filing an affidavit disclosing facts as required under Section 9(3)(b) on the date of moving the Petition before this Tribunal and thus the Petition deserves to be dismissed on this ground alone. The dispute between the OC and CD predates 2017 and there has been a running battle between the OC on the one hand and MSEDCL on the other with respect to CPP and CGP status of the OC and its users, all of which goes against the grain of Lol and subsequent PSA entered into between OC and CD. The contentions of the CD in this regard are not illusory or moon shine is vouched by the records that even as of today the issue with MSEDCL has not attained finality and the OC is required to approach Central Electricity Regulatory Commission (CERC) as per the latest order dated 29.12.2017 as it is having a pan India presence and the issue even though contended by the Lerned Counsel for OC to be technical has a significant financial implication upon CD, in view of repeated demands made from it by MSEDCL for the relevant period for which supply of power was made by OC to CD - Further, it is also to be seen that all the same the CD cannot be made to wait for final outcome of the running battle between OC and MSEDCL as the PSA itself is for a year and the delay in determination of CPP status has a significant monetary impact on the CD by way of increased levy to the extent imposed by MSEDCL. Further it is also to be seen that the PSA itself has been terminated vide termination letter dated 20911.2016, which is much prior to the notice of default by OC and further, whether such termination is wrongful or whether the CD is entitled to damages as claimed by it, all of which is not for this Tribunal to decide in a summary manner and for which a suit or arbitration is more appropriately suited. Petition is dismissed with cost of ₹ 1,00,000/-.
Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) by Operational Creditor (OC) against Corporate Debtor (CD). 2. Existence of a pre-existing dispute between OC and CD. 3. Compliance with procedural requirements under Insolvency and Bankruptcy Code (IBC), 2016. Issue-wise Detailed Analysis: 1. Initiation of Corporate Insolvency Resolution Process (CIRP) by Operational Creditor (OC) against Corporate Debtor (CD): The OC filed an application under the provisions of IBC, 2016 to initiate CIRP against CD. The application was submitted in Form 5 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The OC claimed a total debt of ?6,98,03,036/- arising from the supply of power to CD, supported by a Power Supply Agreement (PSA) dated 24.7.2016. The OC also annexed bank statements and a certificate from Punjab National Bank confirming non-receipt of payment from CD. 2. Existence of a pre-existing dispute between OC and CD: CD contended that the application was a misuse of the legal process, concealing material facts and that there was a pre-existing dispute. CD raised a counterclaim of ?19,59,98,528/- due to losses incurred from purchasing power at a higher rate from Maharashtra State Electricity Distribution Company Limited (MSEDCL) due to OC's breach of PSA. CD also filed a Civil Suit No. 4590 of 2017 against OC for recovery of the amount, pending adjudication before the District Court of Aurangabad. CD argued that OC's affidavit under Section 9(3)(b) of IBC, 2016 falsely claimed no notice of dispute was received, despite CD having sent a notice of dispute dated 19.10.2017. 3. Compliance with procedural requirements under Insolvency and Bankruptcy Code (IBC), 2016: The Tribunal examined the compliance with procedural requirements under IBC, 2016, particularly Section 9(3)(b) requiring OC to affirm no notice of dispute was received. The Tribunal found that OC had suppressed material facts and filed a false affidavit, as CD had indeed sent a notice of dispute. The Tribunal referred to the Supreme Court's judgment in "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited" which emphasized that the existence of a pre-existing dispute results in the rejection of the application for CIRP. Conclusion: The Tribunal concluded that there was a pre-existing dispute between OC and CD, predating the filing of the application. The dispute was not illusory or moonshine, as evidenced by ongoing litigation and the significant financial implications of the dispute with MSEDCL. The Tribunal found OC's affidavit under Section 9(3)(b) to be false, as it did not disclose the notice of dispute received from CD. Consequently, the Tribunal dismissed the application with a cost of ?1,00,000/-.
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