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2019 (11) TMI 1506 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - Already suit was decreed. There was no pendency of suit when Operational Creditor filed petition under Section 9 against the Corporate Debtor. Maybe Corporate Debtor filed Petition for setting aside the decree. It is filed beyond limitation. Mere filing of Application / Petition for setting aside the decree under Order 9 Rule 13 of CPC against the Corporate Debtor does not amount to dispute pending. If suit is pending, only then we can come to a conclusion that there is dispute pending. Since suit was already disposed and ended in a decree, therefore, it cannot be said there is a preexisting dispute on the ground application was filed for setting aside the decree which was filed beyond time prescribed. Therefore, petition deserves to be admitted as there is default committed by the Corporate Debtor. Petition admitted - moratorium declared.
Issues:
1. Petition filed under Section 9 of Insolvency & Bankruptcy Code, 2016 seeking admission of the Petition, initiation of Corporate Insolvency Resolution Process, granting moratorium, and appointment of Interim Resolution Professional. 2. Existence of a dispute between Operational Creditor and Corporate Debtor regarding default in payment. Issue 1: Petition under Section 9 of IBC: The petition filed by the Operational Creditor, a partnership firm engaged in the business of manufacture and export of fish products, against the Corporate Debtor, a company primarily engaged in fishing activities, alleged a default of ?21,12,790. The Operational Creditor supplied goods worth the mentioned amount, but the Corporate Debtor failed to make full payment, leading to the petition under Section 9 of the Insolvency & Bankruptcy Code, 2016. The Operational Creditor claimed that the Corporate Debtor was irregular in effecting payments and had initiated civil proceedings seeking recovery of the outstanding amount. The Corporate Debtor contested the petition, claiming a pre-existing dispute due to a civil suit where summons were allegedly not served, and an ex-parte order was obtained. The Tribunal analyzed the facts, including the decree passed in favor of the Operational Creditor, and appointed an Interim Resolution Professional to oversee the Corporate Insolvency Resolution Process. Issue 2: Existence of Dispute: The Corporate Debtor argued that the petition was not maintainable due to a pre-existing dispute as per the definition under Section 5(6) of the IBC. However, the Tribunal found that the decree obtained by the Operational Creditor had reached finality as the Corporate Debtor did not appeal against it within the statutory time limit. The Tribunal referenced the judgment of the Hon'ble Supreme Court to establish that the decree was conclusive, and the mere filing of an application to set aside the decree did not constitute a pending dispute. Therefore, the Tribunal admitted the petition, rejecting the Corporate Debtor's arguments about the existence of a dispute. The Tribunal further directed the appointment of an Interim Resolution Professional and declared a moratorium on legal actions against the Corporate Debtor during the insolvency resolution process. This detailed analysis of the legal judgment from the National Company Law Tribunal, Hyderabad Bench, highlights the issues surrounding the petition under the Insolvency & Bankruptcy Code, 2016, and the determination of the existence of a dispute between the Operational Creditor and the Corporate Debtor. The Tribunal's decision, based on the facts presented and legal precedents cited, provides a comprehensive understanding of the resolution process and the appointment of an Interim Resolution Professional to oversee the insolvency proceedings.
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