2020 (5) TMI 713 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT - As to the facts of the present case, it may be seen that the Operational Creditor has raised various Invoices after supplying the materials to the Corporate Debtor and the Operational Creditor has also filed the Ledger Statement, which is maintained in the books of the Operational Creditor and a perusal of the same shows that a sum of ₹ 53,52,607.73/- is due and payable by the Corporate Debtor. However, on the contrary, the Corporate Debtor has also filed the Statement of Accounts in relation to the Operational Creditor maintained in their books of account, which goes to on show that only a sum of ₹ 60,169/- is pending to be paid by the Corporate Debtor to the Operational Creditor. As to the facts of the case, from the records it is evident that a series of notices and reminders have been exchanged between the parties from the year 2012 and even the Corporate Debtor by their letter dated 09.03.2017 has disputed the claim of the Operational Creditor. Further, it may be seen that the Corporate Debtor at no point of time has admitted the liability of the Operational Creditor. In so far as the e-mail dated 29.10.2015 which is referred by the Operational Creditor as an admission of liability by the Corporate Debtor, a perusal of the same shows that no where the Corporate Debtor has stated that the sum is due and payable by them to the Operational Creditor - Further upon perusal of the documents filed by the Operational Creditor, the 'debt' and 'default' on the part of the Corporate Debtor cannot be ascertained. Only upon when the accounts are reconciled, the exact amount, which has become due and payable by the Corporate Debtor can be ascertained. We are well aware of the fact that this Authority cannot reject the claim of the Operational Creditor on the ground of amount not having become crystallized. However, as to the facts of the present case, in order to ascertain the 'debt' and 'due' the accounts needs to be reconciled and only upon reconciliation, as also if any cost reduction is ascertained, it may pass on to the Corporate Debtor and in the said circumstances, we cannot beforehand presume that the debt as claimed by the Operational Creditor will cross the threshold limit as prescribed under Section 4 of the IBC, 2016. Application dismissed.

Summary

Issues Involved:
Initiation of Corporate Insolvency Resolution Process under Section 9 of the Insolvency & Bankruptcy Code, 2016 based on operational debt claim.

Detailed Analysis:

Issue 1: Application for Corporate Insolvency Resolution Process
The Operational Creditor filed an application under Section 9 of the IBC, 2016 to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, claiming an operational debt of ?53,52,607.73, excluding contractual interest. The Operational Creditor provided various documents to evidence the default, including financial statements, demand notices, replies, reminder letters, winding-up notice, purchase orders, and invoices.

Issue 2: Allegations and Defenses
The Operational Creditor alleged that the Corporate Debtor acknowledged the outstanding debt and quality of supplied products, leading to the default. In contrast, the Corporate Debtor contended that the application was not maintainable, denying any liability or agreement to the interest rate claimed. The Corporate Debtor argued that all dues were settled in 2015 and disputed the authenticity of the documents presented by the Operational Creditor.

Issue 3: Examination of Accounts and Reconciliation
Upon reviewing the documents and statements of accounts from both parties, discrepancies in the amount due were identified. Despite multiple attempts to reconcile the accounts and directions from the Tribunal to report any differences, the parties failed to comply. The Tribunal noted a significant disparity in the claimed amounts between the Operational Creditor and the Corporate Debtor.

Issue 4: Lack of Clarity on Debt and Default
The Tribunal found that the exact amount due and payable by the Corporate Debtor could not be ascertained without reconciling the accounts. The cause of action from the invoices raised since 2012 lacked clarity, and the reconciliation process remained inconclusive. The Tribunal emphasized the importance of reconciling accounts to determine the actual debt and due amount accurately.

Conclusion:
The Tribunal dismissed the application without costs, highlighting the necessity of reconciling accounts to establish the precise debt owed by the Corporate Debtor. While acknowledging the limitations of summary jurisdiction, the Tribunal suggested civil proceedings or arbitration for further resolution, emphasizing the need for clarity on the debt amount before initiating insolvency proceedings under the IBC, 2016.