2018 (9) TMI 1866 - Tri - Insolvency and Bankruptcy

Maintainability of petition - Initiation of Corporate Insolvency Resolution Process - Corporate Debtor - Operational debt - supply of cotton bales made by the Petitioner to the Respondent/Corporate Debtor - existence of dispute or not - whether the debt is due and payable and has not yet been paid? - disputes between the Petitioner and the Respondent have been referred to mediation to M/s. Apex Cotton Agency (I) Pvt. Ltd. which is one of the dispute mechanism resolutions between the buyers and sellers arising out of dealings contracts and transactions in respect of disputes relating to quantity and quality or the physical delivery for transactions in the cotton trading. HELD THAT - As already said the very fact that the Respondent issued the LC for 39, 15, 148/- which is far excess the claim of the M/s. SAMKIT BIO FARMS LIMITED goes to show that there was a resolution and there was an understanding - it can be said the Operational Debt due to the Petitioner and the other 2 Companies i.e. M/s. R.S. COTTMARK (INDIA) PVT. LTD. and M/s. SAMKIT BIO FARMS LIMITED has been repaid by way of encashment of LC for 39, 15, 148/- by M/s. SAMKIT BIO FARMS LIMITED. Even if it is held that there is no repayment of Operational Debt due to the Petitioner and M/s. R.S. COTTMARK (INDIA) PVT. LTD. inspite of the fact that LC has been encashed by M/s. SAMKIT BIO FARMS LIMITED still the material on record goes to show that there exist a dispute between the Petitioner and the Respondent in respect of the Operational Debt claimed by the Petitioner. This Tribunal is of the view that there exists a dispute and because of the resolution of the said dispute only Respondent/Corporate Debtor issued LC for 39, 15, 148/- in favour of M/s. SAMKIT BIO FARMS LIMITED with an understanding that after encashment of LC M/s. SAMKIT BIO FARMS LIMITED would pay amounts to the Petitioner and M/s. R.S. COTTMARK (INDIA) PVT. LTD. - the contention of the Respondent require further investigation and enquiry. It requires oral evidence even from the Company that acted as mediator in the resolution process. Petition dismissed.

Summary

Issues Involved:
1. Existence of Operational Debt
2. Dispute Regarding Quality of Goods
3. Settlement and Payment Dispute
4. Validity of Demand Notice and Legal Proceedings

Detailed Analysis:

1. Existence of Operational Debt:
The tribunal examined whether there was an operational debt exceeding ?1 lakh as defined under the Insolvency and Bankruptcy Code, 2016. The petitioner, M/s. Krishna Bio Tech, claimed a total amount of ?30,08,123/- for the supply of cotton bales to the respondent, M/s. Rajvir Industries Limited. The operational debt was confirmed as it related to the provision of goods, which falls under the definition of operational debt per Section 5(21) of the IB Code.

2. Dispute Regarding Quality of Goods:
The respondent contended that the cotton bales supplied by the petitioner were of poor quality and did not meet the stipulated standards. The consignment was rejected due to high moisture content and extraneous particles. The dispute over the quality of the goods was referred to M/s. Apex Cotton Agency (I) Pvt. Ltd., a market intermediary responsible for resolving such disputes. The respondent claimed that the petitioner admitted the defect but refused to take back the material. This quality dispute was a significant factor in the tribunal's decision.

3. Settlement and Payment Dispute:
The respondent argued that the operational debt had been discharged through an irrevocable Letter of Credit (LC) issued in favor of M/s. Samkit Bio Farms Limited for ?39,15,148/-. The LC was part of a settlement agreement involving multiple parties, including the petitioner. The respondent claimed that M/s. Samkit Bio Farms Limited was to pay ?19,32,864/- to the petitioner as full and final settlement. However, the petitioner disputed this settlement, arguing that the excess payment to M/s. Samkit Bio Farms Limited did not discharge the debt owed to them. The tribunal noted that the existence of the LC and the settlement agreement indicated a resolution of the dispute, though it required further investigation.

4. Validity of Demand Notice and Legal Proceedings:
The petitioner issued a demand notice on 20.11.2017, which was received by the respondent on 27.11.2017. The respondent argued that the demand notice was issued during ongoing dispute resolution meetings and that the petitioner had agreed to withdraw the notice. The tribunal referred to the Supreme Court's judgment in Mobilox Innovations (P.) Ltd. v. Kirusa Software (P.) Ltd., which outlined the criteria for admitting an application under Section 9 of the IB Code. The tribunal concluded that there was a genuine dispute between the parties, which required further investigation and could not be resolved through the current proceedings.

Conclusion:
The tribunal found that there were significant disputes regarding the quality of goods and the settlement of the operational debt. The existence of these disputes and the ongoing resolution process indicated that the petition could not be admitted under Section 9 of the IB Code. The petition was rejected, with no order as to costs.