2020 (2) TMI 697 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational debt or not - HELD THAT - In TATA CHEMICALS LIMITED VERSUS RAJ PROCESS EQUIPMENTS AND SYSTEMS PRIVATE LIMITED 2018 (11) TMI 1662 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI this bench had held that refund of advance money is not in connection with goods or services. The service was to be rendered not by the Operational Creditor but the Corporate Debtor. In the present case also, the claim relates to non-payment of advance money and hence the same is not covered under the definition of Operational Debt . Application dismissed.

Summary

Issues:
Company petition under section 9 of the Insolvency & Bankruptcy Code, 2016 seeking Corporate Insolvency Resolution Process (CIRP) against a Private Limited Company for non-payment of a principal amount as per agreement.

Analysis:
The Company Petition was filed under section 9 of the Insolvency & Bankruptcy Code, 2016 by an individual as the Operational Creditor against a Private Limited Company. The petition was based on the Corporate Debtor's failure to make a payment of a specified sum as per an agreement dated 11.05.2018, with a default date of 15.07.2018. The agreement obligated the Corporate Debtor to supply, install, test, and commission a ghee manufacturing plant within a specified timeframe. The Operational Creditor had paid the principal amount as per the agreement and further obligations were subject to the Corporate Debtor's performance.

The Operational Creditor contended that the Corporate Debtor breached the agreement by failing to complete the project within the stipulated time frame and failing to refund the principal amount. Despite a demand notice and a reply from the Corporate Debtor, no payment was made, leading to the filing of the petition. The Corporate Debtor did not dispute its liability and failed to file a reply to the petition despite opportunities provided.

The Tribunal noted previous judgments where it was established that the refund of advance money does not fall under the definition of "Operational Debt" as the service was to be rendered by the Corporate Debtor, not the Operational Creditor. Citing precedents, the Tribunal concluded that the claim for non-payment of advance money did not qualify as "Operational Debt," leading to the rejection of the application. The Tribunal clarified that the dismissal of the petition should not prejudice the petitioner's rights before any other judicial forum.

In conclusion, the Tribunal rejected the application based on the nature of the claim and the definition of "Operational Debt." The decision was in line with previous judgments and did not impact the petitioner's right to pursue the matter in other legal avenues. The order was communicated to the parties as per the provisions of the Insolvency & Bankruptcy Code.