2017 (3) TMI 1616 - Tri - Insolvency and Bankruptcy

Insolvency Resolution Process - proceedings for recovery of the claim - existence of eligible debt - Held that - Code itself is meant for the cases falling within the realm of Insolvency and Bankruptcy. It need not be mentioned any further in the sections that the purpose and object of the Code is to empower the creditors to initiate insolvency proceedings before company quietly slid into insolvency or bankruptcy keeping the creditors at bay therefore no section could be taken out of context and read separately so as to interpret that any person who has claim against any and every company can invoke provisions under I & B Code. The duty is cast upon NCLT to apply these provisions in the context the statute warranting and it is the bounden duty of NCLT to see the object of the Code is implemented. Thus though no dispute is in existence as mentioned under definition of Section 5(20) and Section 8 of I & B Code we are of the view that the facts of the case do not warrant to invoke section 9 to declare moratorium and consequential directions. Company petition dismissed.

Issues Involved:
1. Default in Payment by Corporate Debtor
2. Reconciliation of Accounts
3. Notice under Section 8 of I & B Code
4. Arbitration Clause in Work Order
5. Applicability of Insolvency and Bankruptcy Code (I & B Code)
6. Financial Health of Corporate Debtor
7. Legal Precedents and Interpretation of Insolvency
8. Alternative Remedies for Creditor

Issue-wise Detailed Analysis:

1. Default in Payment by Corporate Debtor:
The Operational Creditor filed a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016, claiming that the Corporate Debtor defaulted in making payments for goods and services supplied. The invoices raised amounted to ?8,33,80,343 for the GF Toll Project and ?27,31,430 for the DS Toll Projects. Payments totaling ?5,41,07,993 were made by the debtor, leaving an outstanding balance of ?3,12,83,758. Despite continuous services provided by the creditor, the debtor failed to make further payments.

2. Reconciliation of Accounts:
Two reconciliation statements were jointly prepared on 12.8.2015, admitting a balance payable of ?2,74,92,594 for the GF Toll Project and ?1,00,000 for the DS & NK Toll Projects. The creditor argued that the difference in amounts was due to non-updation of two bills in the debtor's books. The debtor's counsel contended that payments made were not updated in the accounts, leading to discrepancies.

3. Notice under Section 8 of I & B Code:
The creditor issued a notice under Section 8 of the I & B Code on 21.01.2017, demanding payment of ?3,12,83,758. The debtor did not reply within the stipulated 10 days but later responded, claiming non-performance of the contract by the creditor and resultant losses.

4. Arbitration Clause in Work Order:
The debtor's counsel argued that the creditor should have initiated arbitration proceedings as per the arbitration clause in the work order, instead of insolvency proceedings. The debtor company, with a net worth of ?24,000 crore and substantial assets, claimed that insolvency proceedings would adversely affect its operations and public interest.

5. Applicability of Insolvency and Bankruptcy Code (I & B Code):
The tribunal noted that the I & B Code is meant for cases where the debtor is unable or refuses to make payments, not merely for debt recovery. The Code aims to resolve insolvency and, if necessary, liquidate assets to distribute among creditors. The tribunal emphasized that the Code is not intended for debt recovery but for restructuring or liquidation when insolvency is evident.

6. Financial Health of Corporate Debtor:
The debtor company demonstrated substantial financial health, with assets double its liabilities and a net worth of ?24,000 crore. The tribunal concluded that the company was neither cash flow insolvent nor balance sheet insolvent, and initiating insolvency proceedings for a claim of ?3 crores would be inappropriate.

7. Legal Precedents and Interpretation of Insolvency:
The creditor cited legal precedents to argue that admitted debts should lead to insolvency proceedings. However, the tribunal distinguished between winding-up proceedings under the Companies Act and insolvency proceedings under the I & B Code. The tribunal reiterated that insolvency proceedings should be initiated only when the debtor is unable or refuses to pay, not merely based on debt admission.

8. Alternative Remedies for Creditor:
The tribunal suggested that the creditor could pursue other legal remedies, such as civil suits or arbitration, for debt recovery. The objective of the I & B Code is to address insolvency and bankruptcy, not to serve as a debt recovery mechanism.

Conclusion:
The tribunal dismissed the petition, emphasizing that the I & B Code is not meant for debt recovery but for addressing genuine insolvency situations. The creditor was advised to seek alternative legal remedies for debt recovery. The tribunal's decision highlighted the importance of distinguishing between insolvency and mere debt disputes, ensuring that the Code's provisions are applied appropriately.

← Previous Next →