9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (1) TMI 816 - Tri - Insolvency and BankruptcyCorporate Insolvency Resolution Process - Whether the respondent succeeded in proving existence of a genuine dispute as alleged in the reply? - Held that - No proof produced in support of oral intimation of dispute to the petitioner prior to the date of receipt of the demand notice by the respondent. The demand notice was received by the respondent on 28.06.2017. In the absence of proof to prove that the respondent raised the dispute as highlighted in the reply prior to the receipt of the notice from the petitioner we find no merits in the contention of the respondent that there was a pre-existing dispute as alleged. Thus, the contention of the respondent that a dispute was in existence and therefore a petition of this nature is not maintainable is found devoid of any merit. This point is answered accordingly. The contentions of the respondent that there was pre-existing dispute regarding the services given by the petitioner to the respondent and that pendency of arbitration proceedings initiated at the instances of the respondent bar the instant petition is found devoid of any merit. Given the abovesaid discussion, we have no hesitation to hold that this petition deserves admission under section 9 of I&B Code. Accordingly, we admit this Petition u/s. 9 of the Code declaring a moratorium for the purposes referred to in section 14 of the Code
Issues Involved:
1. Existence of a genuine dispute as alleged by the respondent. 2. Impact of pending arbitration proceedings on the petition filed under Section 9 of the Insolvency and Bankruptcy Code, 2016. Issue-wise Detailed Analysis: 1. Existence of a Genuine Dispute: The petitioner, an operational creditor, initiated the Corporate Insolvency Resolution Process (CIRP) against the corporate debtor under Section 9 of the Insolvency and Bankruptcy Code, 2016, claiming an unpaid amount of ?4,72,45,685.13. The respondent admitted to the services received but contended that disputes existed regarding the petitioner’s adherence to trading principles and SEBI guidelines. The Tribunal referenced the Supreme Court's ruling in Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd, which stated that the adjudicating authority must reject the application if a genuine dispute exists that is not spurious, hypothetical, or illusory. The Tribunal also cited Innoventive Industries Ltd. v. ICICI Bank, emphasizing that the existence of a dispute removes the operational creditor from the purview of the Code. Upon examining the records, the Tribunal found no evidence supporting the respondent's claim of a pre-existing dispute before receiving the demand notice. The Tribunal determined that the respondent's allegations were not substantiated by any proof of dispute raised prior to the demand notice, thus failing to qualify as a genuine dispute under Section 5(6) of the Code. Consequently, the Tribunal found the respondent’s contention of a pre-existing dispute to be without merit. 2. Impact of Pending Arbitration Proceedings: The respondent argued that the petition should be dismissed due to the pending arbitration proceedings initiated before the IGRP and referred to the NSE. The Tribunal examined the timeline and found that the arbitration proceedings were initiated after the demand notice was served. The petition was filed on 21.09.2017, while the IGRP referred the dispute for arbitration on 22.09.2017. The Tribunal concluded that no arbitration proceedings were pending at the time of filing the petition. Therefore, the arbitration proceedings initiated post-filing did not bar the petition under Section 9 of the Code. The Tribunal determined that the dispute raised in the reply did not qualify as a genuine dispute under Section 5(6) of the Code. Conclusion: The Tribunal admitted the petition under Section 9 of the Code, declaring a moratorium under Section 14 and appointing an interim resolution professional. The Tribunal directed the IRP to make a public announcement of the CIRP and dismissed IA 524/KB/2017 as it required no consideration post-admission of the petition. The registry was instructed to communicate the order to all relevant parties and provide certified copies upon request.
|
