2019 (1) TMI 843 - AT - Insolvency and Bankruptcy

Corporate Insolvency Resolution Process - existence of dispute - Held that - Demand notice under Section 8(1) dated 7th February, 2017 was issued earlier, referring to the invoices issued on 13th April, 2014, 2nd June, 2015, 30th September, 2015 and 23rd June, 2016, relating to which two months time was granted by subsequent notice dated 5th May, 2017. The application under Section 9 was filed on 31st March, 2017 i.e. much prior to the period of 60 days time granted by notice dated on 5th May, 2017. From the aforesaid fact, we find that the Respondent since 27th June, 2016 raised dispute about ineligibility of banker whose bank guarantee was given by the Appellant and which was not in accordance with the agreement. There is nothing on the record that the Appellant, thereafter, took correctional measure and communicated it to the Corporate Debtor . From the aforesaid facts, it appears that there is existence of dispute since 2016 and the Appellant also granted time to the Respondent 60 days by their notice dated 5th May, 2017, but application under Section 9 was filed prior to the said period. For the reason aforesaid, no interference is called for against the impugned order. The appeal is accordingly dismissed.

Summary

Issues:
1. Dismissal of application under Section 9 of the Insolvency and Bankruptcy Code, 2016 by the Adjudicating Authority.
2. Interpretation of the term "Financial Institution" under the I&B Code.
3. Pre-existence of dispute between the parties.
4. Validity of notices issued by the Appellant.
5. Application of Article 40 of the contract in dispute.
6. Timeliness of the application under Section 9.

Issue 1: Dismissal of application under Section 9:
The Appellant filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 against the Respondent, seeking initiation of the Corporate Insolvency Resolution Process. The Adjudicating Authority dismissed the appeal due to a notice of dispute raised by the Respondent and a defect detailed in the judgment.

Issue 2: Interpretation of "Financial Institution":
The Appellate Tribunal initially dismissed the appeal based on the foreign Bank's lack of recognition under the I&B Code, as it had no office in India or any account with a Bank or Financial Institution. This decision was influenced by a previous judgment in "Macquarie Bank Limited Vs. Uttam Galva Metallics Limited." However, the Supreme Court later reversed this decision based on "Macquarie Bank Ltd. vs. Shilpi Cable Technologies Ltd."

Issue 3: Pre-existence of dispute:
The Respondent raised a dispute regarding the delivery of goods, citing issues with the bank guarantee provided by the Appellant. The Respondent requested a guarantee from a commercial Bank, leading to a communication exchange indicating a dispute existed since 2016, prior to the application under Section 9.

Issue 4: Validity of notices:
The Appellant issued multiple notices demanding payment under the supply contract, invoking Article 36 for amicable resolution. However, the Respondent had previously raised concerns about the bank guarantee, indicating a dispute that was not adequately addressed by the Appellant.

Issue 5: Application of Article 40:
The parties had a supply contract superseding a previous agreement, emphasizing that the contract constituted the entire agreement between them. This clause was crucial in determining the scope and validity of the contractual obligations between the parties.

Issue 6: Timeliness of the application:
The Appellant filed the application under Section 9 before the expiry of the 60-day period granted for dispute resolution, indicating a lack of adherence to the agreed-upon timeline for resolving disputes. The existence of a dispute since 2016 and the premature filing of the application led to the dismissal of the appeal.

In conclusion, the dismissal of the appeal was upheld due to the pre-existence of a dispute, inadequacy in addressing the concerns raised by the Respondent, and the premature filing of the application under Section 9. The judgment provides a detailed analysis of the contractual obligations, dispute resolution attempts, and the interpretation of relevant provisions under the I&B Code, emphasizing the importance of timely and effective communication in such matters.