2023 (2) TMI 1132 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - pre-existing dispute or not - HELD THAT - It is seen from part-IV of the Application that the Operational Creditor has claimed a total sum of Rs. 3, 66, 75, 221/- Principal amounting to Rs. 1, 91, 55, 230/- along with interest @ rate of 24% per annum amounting to Rs. 1, 75, 19, 991/- . It is not a disputed fact that there is a case pending before the MSME FC Pondicherry in case no. 3444/Ind Com/Unit- III/B7/2020. The same also forms part of the Applicant/Operational Creditor s submissions. Thus taking into consideration the blanket of facts and circumstances of this case this Adjudicating Authority comes to the inevitable conclusion that this Application is liable to be dismissed as there is a pre-existing dispute in light of the Hon ble Supreme Court judgment in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED 2017 (9) TMI 1270 - SUPREME COURT . Application dismissed.

Summary

Issues:
Application under Section 9 of IBC, 2016 for Corporate Insolvency Resolution Process.

Analysis:
The Application was filed by the Operational Creditor seeking to initiate Corporate Insolvency Resolution Process against the Corporate Debtor, a Private Limited Company. The Operational Creditor claimed an outstanding amount of Rs. 3,66,75,221, including principal and interest. The Operational Creditor had a history of supplying corrugated boxes to the Corporate Debtor for over 5 years, with numerous invoices issued and partial payments made by the Corporate Debtor. Legal notices were sent to the Corporate Debtor demanding payment, but no response was received. The Operational Creditor also filed a petition before the MSME on a separate matter, which was pending.

The Respondent/Corporate Debtor argued that a pre-existing dispute existed due to a pending MSME petition for recovery of dues, invoking Section 18 of the MSME Act. The Respondent contended that the Application should be dismissed based on the Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited judgment. Additionally, the Respondent claimed that the Operational Creditor failed to provide sufficient evidence of the supply of materials.

After considering the submissions and records, the Tribunal found that there was indeed a pre-existing dispute pending before the MSME FC Pondicherry, as highlighted by the Respondent. Citing the Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited judgment, the Tribunal concluded that the Application should be dismissed due to the existence of a pre-existing dispute. Consequently, the Tribunal dismissed the Application for Corporate Insolvency Resolution Process against the Corporate Debtor.