2021 (7) TMI 1438 - AT - Insolvency and Bankruptcy

Maintainability of Section 9 application - existence of debt due and default or not - HELD THAT - The amount of default is calculated and Section 9 application was filed and it is claimed that the Appellant is entitle to 20% of the amount received by the Respondent under the Construction Agreement. There are substance in finding of the Adjudicating Authority that there was no material of service rendered. The Section 8 notice relied on also does not show material as to service rendered. Under the provisions of IBC, to be an Operational Creditor it is necessary to show that there is an operational debt which has to be a claim with regard to provision of goods or services. These important ingredients are missing in the present matter. The impugned order need not be interfered with - appeal disposed off.

Summary

Issues involved:
1. Validity of the impugned order passed by the Adjudicating Authority under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Determination of operational debt and default under the Construction Agreement between the Appellant and Respondent.
3. Compliance with the requirements for being classified as an Operational Creditor under the IBC.

Detailed Analysis:
1. The Appellate Tribunal reviewed an appeal filed by the Operational Creditor against the order issued by the Adjudicating Authority, which was challenged on the grounds of debt due and default under Section 9 of the IBC. The Construction Agreement between the parties formed the basis of the claim, where the Respondent was alleged to have received payments from the Government but failed to pay the Appellant as per the agreed terms. The Adjudicating Authority's order was scrutinized for compliance with legal provisions and evidence of debt and default.

2. The Adjudicating Authority's order highlighted discrepancies in the application filed under Section 9, emphasizing the absence of crucial documents such as invoices or bills to ascertain the due date and default. It was noted that the Appellant failed to establish themselves as an operational creditor as per the definition outlined in the IBC. The Tribunal concurred with the findings that essential elements like service provision were not adequately demonstrated, leading to the dismissal of the application under Section 9. The Construction Agreement's terms regarding payment obligations were examined to determine the operational debt claimed by the Appellant.

3. The Tribunal further emphasized the necessity for an operational debt claim to be linked to the provision of goods or services, a requirement not satisfactorily met in the present case. The Section 8 notice served by the Appellant was also deemed insufficient in proving the operational debt, reinforcing the decision to uphold the Adjudicating Authority's order. The Appellant was granted the liberty to seek alternative legal avenues for claim recovery and advised to follow the appropriate procedures if considering filing a fresh application under Section 9 of the IBC. The appeal was consequently disposed of without imposing any costs.

In conclusion, the judgment delved into the intricacies of operational debt determination, highlighting the significance of fulfilling statutory requirements and providing substantial evidence to support claims under the IBC. The decision underscored the importance of adherence to legal standards and documentation in insolvency proceedings, ultimately leading to the dismissal of the appeal based on the lack of essential elements essential for classification as an operational creditor.