2019 (8) TMI 40 - AT - Insolvency and Bankruptcy

Admissibility of petition - Initiation of Corporate Insolvency Resolution Process - non-availability of evidence relating to debt and default - Section 9 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT - The invoice has been taken into consideration by the Adjudicating Authority to come to a definite conclusion that the buyer is Perfect IT Solution as shown in the invoice and not Sify Technologies Limited (Respondent herein) - Learned counsel for the Appellant submitted that Perfect IT Solution is agent of Sify Technologies Limited , which the Respondent has also admitted in their Demand Notice. However, such disputed question cannot be decided either by the Adjudicating Authority or by this Appellate Tribunal, as in the invoice the name of the buyer has been shown as Perfect IT Solution and not Sify Technologies Limited . There being a disputed question of fact, we are of the view that it is a case which can be decided by a Court of Competent Jurisdiction, hence the application under Section 9 is not maintainable - appeal dismissed.

Summary

Issues:
Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 rejected due to lack of evidence of debt and default.

Analysis:
The Appellant, claiming to be an 'Operational Creditor,' filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, which was rejected by the Adjudicating Authority in Chennai for not providing evidence related to debt and default. The Appellate Tribunal reviewed the case after hearing counsels for both parties and examining the records.

The application included Form 5, detailing the 'particulars of operational debt,' which required documents, records, and evidence of default. However, the Tribunal noted that the Appellant did not enclose any document, record, or evidence of default, marking them as 'not applicable' or leaving them blank.

The Appellant's counsel tried to rely on an invoice dated 22nd January, 2018, to show evidence of default, where the buyer was mentioned as 'Perfect IT Solution.' However, the Adjudicating Authority concluded that the buyer was 'Perfect IT Solution' and not the Respondent, 'Sify Technologies Limited.'

The Appellant argued that 'Perfect IT Solution' was an agent of 'Sify Technologies Limited,' as admitted in the Demand Notice. However, the Tribunal stated that as per the invoice, the buyer was 'Perfect IT Solution,' creating a disputed question of fact. The Tribunal found this issue beyond its jurisdiction and stated that it should be decided by a Court of Competent Jurisdiction, making the Section 9 application not maintainable.

Consequently, the appeal was dismissed, but the Appellant was allowed to seek appropriate relief from a Court of Competent Jurisdiction. The Tribunal clarified that its decision would not hinder the Appellant from pursuing further legal remedies.