2019 (9) TMI 1380 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT - There is some mutual understanding between both the parties and in view of that the corporate debtor paid an amount of 25, 00, 000/- to the operational creditor as an advance with a condition to repay said amount as and when the operational creditor is successful to recover the same from M/S. Flovel Valves Private Limited who has defaulted in payment - the documents attached to the application itself shows that there exists pre- dispute regarding the claim amount. The e-mail communication from the respondent company placed at page No. 10 to the reply clearly shows that there is/was pre-existing dispute. Since the very objective of the Code is re-organization and insolvency resolution of corporate persons no objective will be served by subjecting a solvent company to insolvency resolution process. Further recovery is an individual effort by a creditor to recover its dues through a process that has debtor and creditor on opposite sides. When creditors recover their dues - one after another or simultaneously from the available assets of the firm nothing may be left in due course. Thus while recovery bleeds the corporate debtor to death resolution endeavors to keep the corporate debtor alive. In fact the I B code prohibits and discourages recovery in several ways. The Adjudicating Authority is of the considered view that the instant petition is not maintainable on the ground that prior to filing the application on 14th November 2018 there is/are pre-existing dispute raised by the respondent in respect of container detention charges - Petition dismissed.

Summary

Issues involved:
- Petition under Section 9 of The Insolvency and Bankruptcy Code, 2016
- Dispute regarding outstanding dues and interest
- Allegations of tampering with ledger account
- Existence of pre-dispute between parties
- Maintainability of the petition due to pre-existing dispute

Detailed Analysis:

Issue 1: Petition under Section 9 of The Insolvency and Bankruptcy Code, 2016
The operational creditor filed a petition under Section 9 of The Insolvency and Bankruptcy Code, 2016, seeking payment of outstanding dues and interest from the corporate debtor. The operational creditor claimed that despite reminders, the dues remained unpaid, totaling to ?18,58,101, including interest at 18% per annum.

Issue 2: Dispute regarding outstanding dues and interest
The corporate debtor raised objections, alleging that the operational creditor tampered with ledger accounts and failed to disclose certain arrangements between the parties. The corporate debtor claimed to have made payments and advanced loans to the operational creditor, which were not reflected accurately in the creditor's ledger. The existence of a pre-dispute was evident from communications between the parties dating back to 2016.

Issue 3: Allegations of tampering with ledger account
Upon examination of ledger accounts presented by both parties, discrepancies were noted regarding payments made by the corporate debtor to the operational creditor. The Adjudicating Authority found variations in the entries, highlighting the need for further evidence to ascertain the actual payments made.

Issue 4: Existence of pre-dispute between parties
The correspondence between the parties revealed ongoing arrangements and understandings related to payments and recoveries, indicating a pre-existing dispute before the demand notice was issued. The Adjudicating Authority emphasized the importance of considering disputes existing prior to the initiation of insolvency proceedings.

Issue 5: Maintainability of the petition due to pre-existing dispute
Considering the pre-existing dispute and the objective of the Code to facilitate reorganization and resolution rather than mere recovery, the Adjudicating Authority dismissed the petition. The Authority highlighted the need for documentary proof of undisputed debt for admission of insolvency resolution proceedings and cautioned against pressurizing companies to pay disputed debts.

In conclusion, the Adjudicating Authority dismissed the petition, emphasizing the importance of resolving disputes and preserving the livelihoods of employees dependent on the corporate debtor. The decision underscored the Code's objective of reorganization and insolvency resolution over mere recovery efforts, urging parties to seek appropriate forums for resolving disputes without jeopardizing the going concern of the company.