2017 (8) TMI 1664 - AT - Insolvency and Bankruptcy

Maintainability of Joint Application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT - Different claim(s) arising out of different agreements or work order, having different amount and different dates of default, cannot be clubbed together for alleged default of debt, the cause of action is being separate. For the said reasons, it is held that the joint application preferred by appellant under Section 9 is defective, as distinct from incomplete, and, was not maintainable. Learned counsel for the respondent also highlighted 'existence of dispute' in regard to non-completion of the project within the time, and, the counter-claim as made by the respondent -'Corporate Debtor'. However, in absence of any document enclosed, showing dispute raised prior to issuance of Section 8 notice, such issue is not decided. Impugned order upheld though it is open to the appellant to move separate application in respect of separate work orders/ contracts, if not barred by limitation or delay and laches and if there is no dispute after following the procedure laid down under I B Code and Rules framed thereunder - there are no merit in the appeal - appeal dismissed.

Summary

Issues involved:
1. Challenge to rejection of application under Section 9 of the Insolvency & Bankruptcy Code, 2016 against two Corporate Debtors.
2. Analysis of grounds for rejection of the application by the Adjudicating Authority.
3. Examination of claims made by the Appellant against the Corporate Debtors.
4. Consideration of the clubbing of different claims arising from separate agreements.
5. Assessment of the existence of disputes and the impact on the application under Section 9.

Issue 1: Challenge to rejection of application under Section 9 of the Insolvency & Bankruptcy Code, 2016 against two Corporate Debtors

The Appellate Tribunal heard and disposed of two appeals together, both challenging the rejection of applications under Section 9 of the Insolvency & Bankruptcy Code, 2016. The first appeal involved the Corporate Debtor Reliance Infrastructure Ltd., and the second appeal pertained to D.A. Toll Road Pvt. Ltd.

Issue 2: Analysis of grounds for rejection of the application by the Adjudicating Authority

The Adjudicating Authority rejected the application against Reliance Infrastructure Ltd. on the grounds that the Operational Creditor could initiate arbitration proceedings and that the facts of the case did not warrant invoking Section 9 of the Insolvency & Bankruptcy Code. The Authority also highlighted the existence of disputes and issues with the completeness of the application.

Issue 3: Examination of claims made by the Appellant against the Corporate Debtors

The Appellant's claims against Reliance Infrastructure Ltd. included outstanding dues from three different projects arising from separate work orders. The Tribunal observed discrepancies in the claims, such as the mingling of claims from different projects without explaining the date of default. The Tribunal emphasized the need for the claimant to address delays and laches in filing the application.

Issue 4: Consideration of the clubbing of different claims arising from separate agreements

The Tribunal held that different claims from distinct agreements or work orders, with varying amounts and default dates, cannot be combined for alleging a default of debt. The Tribunal deemed the joint application defective due to the disparate nature of the claims, emphasizing the importance of maintaining separate applications for distinct claims.

Issue 5: Assessment of the existence of disputes and the impact on the application under Section 9

The Respondent highlighted the existence of disputes regarding project completion and counter-claims, but the Tribunal noted a lack of documented evidence of disputes raised before the issuance of the Section 8 notice. The Tribunal declined to interfere with the rejection order but suggested that the Appellant could file separate applications for distinct work orders if not barred by limitation or disputes, following the procedures under the Insolvency & Bankruptcy Code.

In conclusion, the Appellate Tribunal found no merit in the appeals and upheld the rejection of the applications against both Corporate Debtors. The Tribunal emphasized the need for clarity in claims, adherence to procedural requirements, and the resolution of disputes before initiating insolvency proceedings.