2019 (9) TMI 1345 - AT - Insolvency and Bankruptcy

Admission of application for CIRP - issue of demand notice at belated stage - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - The issue inter-se disputes of the Corporate Debtor cannot be taken into consideration for admitting or rejecting an application under Section 9 of IBC. Before filing of application under Section 9 of IBC, a Demand Notice was issued by the Operational Creditor under Section 8(1) of the IBC. On receipt of the notice, the Corporate Debtor has not raised any objection, nor there is anything on record to suggest a pre-existing dispute raised before issuance of Demand Notice under Section 8(1) of the IBC. The Adjudicating Authority had issued notice to the Corporate Debtor before admission of Application under Section 9 of the IBC, but no objection was raised by Corporate Debtor showing pre-existing dispute about the claims. Learned Counsel appearing on behalf of the Appellant submits that the Demand Notice was issued on 11.06.2019 before that no supply of products or services were there. But such dispute having not been raised by the Corporate Debtor before issuance of Demand Notice under Section 8(1) of IBC at belated stage, the Appellant cannot take such plea. Appeal dismissed.

Summary

Issues:
1. Adjudication of application under Section 9 of Insolvency and Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process.
2. Allegation of collusive action between Operational Creditor and Corporate Debtor.
3. Consideration of inter-se disputes of the Corporate Debtor in admitting or rejecting the application.
4. Issuance of Demand Notice under Section 8(1) of IBC and objections raised by the Corporate Debtor.
5. Timing of issuance of Demand Notice and its relevance in the insolvency resolution process.

The judgment by the National Company Law Appellate Tribunal involved the adjudication of an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiating the Corporate Insolvency Resolution Process. The appeal was based on the allegation of collusive action between the Operational Creditor and the Corporate Debtor. The Appellant contended that the application was made with malicious intent, not for resolution of insolvency or liquidation, but the Tribunal found no evidence of collusion or malicious intent in the records, specifically in FormV, the application under Section 9 of IBC. The Tribunal emphasized that the resolution process should focus on insolvency resolution or liquidation, dismissing the appeal without costs.

Regarding the consideration of inter-se disputes of the Corporate Debtor in the admission or rejection of the application, the Tribunal highlighted that such disputes cannot be a determining factor. The Appellant, acting as a Debenture Trustee of the Corporate Debtor, argued that certain matters were not brought to the notice of the Corporate Debtor. However, the Tribunal noted that the absence of objections or pre-existing disputes raised by the Corporate Debtor before the issuance of the Demand Notice under Section 8(1) of IBC was crucial. The Adjudicating Authority had issued a notice to the Corporate Debtor before admitting the application under Section 9, but no objections were raised by the Corporate Debtor regarding pre-existing disputes.

The timing of the issuance of the Demand Notice was also a point of contention. The Appellant claimed that the Demand Notice was issued before any supply of products or services took place, but the Corporate Debtor did not raise this dispute before the issuance of the Notice. The Tribunal concluded that such belated disputes could not be considered at that stage, emphasizing the importance of timely objections and adherence to the procedural requirements of the IBC. Consequently, the appeal was dismissed by the Tribunal, highlighting the significance of following due process and addressing disputes in a timely manner within the insolvency resolution framework.