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2021 (1) TMI 1219 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - advance payment paid by the Operational Creditor and not refunded by the Corporate Debtor - Operational Creditors - existence of debt and dispute or not - HELD THAT - It is an admitted position that in the instant case, it is the corporate debtor who is the service provider and not operational creditor and operational creditor has only filed the present petition on the basis of an advance payment paid by the Operational Creditor and not refunded by the Corporate Debtor. The said advance does not fall within the four corners of Operational Debt. Therefore, we are of the opinion that the alleged debt is not an Operational Debt as defined u/s 5(21) of IBC, 2016. The Present Petition is dismissed without any cost.
Issues:
- Whether the petition under Section 9 of the Insolvency & Bankruptcy Code, 2016 is maintainable? - Whether the debt claimed qualifies as an "Operational Debt" as defined under Section 5(21) of the IBC, 2016? Detailed Analysis: Issue 1: Maintainability of the Petition under Section 9 of IBC, 2016: The case involved a petition filed by an Operational Creditor seeking to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor. The Operational Creditor alleged that an amount was transferred to the Corporate Debtor on the assurance of direct dealing, but no services were provided in return. The Corporate Debtor contended that the petition was not maintainable under Section 9 of the IBC, 2016, as there was no "Operational Debt" within the meaning of the Code. The Corporate Debtor argued that the Operational Creditor was not providing any services or goods and, therefore, did not qualify as an "Operational Creditor." The Corporate Debtor also raised objections regarding limitation and claimed that the amount in question had been adjusted towards charges due from the Operational Creditor for the use of the Corporate Debtor's aircraft. The Tribunal, after considering the pleadings and arguments, held that the alleged debt did not fall within the definition of "Operational Debt" as per Section 5(21) of the IBC, 2016. Consequently, the petition was dismissed. Issue 2: Qualification of Debt as "Operational Debt" under Section 5(21) of IBC, 2016: The Operational Creditor argued that the debt claimed fell within the ambit of "Operational Debt" as defined under Section 5(21) of the IBC, 2016. The Operational Creditor relied on relevant case law and definitions to support its position. However, the Corporate Debtor contested this claim, emphasizing that there was no privity of contract between the parties for the provision of goods or services. The Corporate Debtor referenced a judgment where a similar situation was deemed not to constitute an "Operational Debt." The Tribunal noted that in the present case, the Operational Creditor had initiated the petition based on an advance payment not refunded by the Corporate Debtor, which did not align with the definition of "Operational Debt." The Tribunal concluded that the debt in question did not qualify as an "Operational Debt" under the IBC, 2016, leading to the dismissal of the petition. In conclusion, the Tribunal dismissed the petition under Section 9 of the IBC, 2016, as the alleged debt did not meet the criteria of an "Operational Debt" as defined by the Code. The judgment highlighted the importance of aligning claims with the legal definitions and requirements under the insolvency framework, emphasizing the need for clarity and specificity in initiating insolvency proceedings.
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