2020 (10) TMI 487 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT - It is the admitted case of the parties that the agreement which Operational Creditor has enclosed with the application has never been signed by the parties. It is also admitted case that the draft agreement which was sent by the Corporate Debtor was changed by the Operational Creditor and which was never been signed by the Corporate Debtor - on the basis of aforesaid admitted facts, it can be said that there is no agreement in between the parties because the proposal which was made by the Corporate Debtor was according to the case of Operational Creditor was modified but the same was not accepted by the Corporate Debtor. Therefore, on the basis of that, it can be said that the agreement which the Operational Creditor annexed is no agreement in the eye of law. When we shall consider the claim of the Corporate Debtor then we find that the Corporate Debtor tried to convince us that there was a pre-existing dispute which the Corporate Debtor raised prior to the receipt of the demand notice by sending the legal notice on 14th March, 2018 and 25th April 2018 which th(sic) Corporate Debtor claimed that no reply had been given by the Operational Creditor till date - when we shall consider the case of the Operational Creditor then we find, in the reply of the demand notice, it is specifically mentioned that a legal notices were sent to the Operational Creditor by the Corporate Debtor on 14th March 2018 and 25th April, 2018 and also claimed that no reply was given by the Operational Creditor to that notice. Even no averment was made either in the main application filed by the Operational Creditor or in the rejoinder filed by him, in response to the reply filed by the Corporate Debtor. Therefore, we are of the considered view that the Operational Creditor has not reverted the averment made in the legal notice dated 14th March, 2018 and 25th April 2018 and on the basis of that, we find that these two notices were sent by the Corporate Debtor prior to the receiving of the demand notice and by sending these legal notices, the Corporate Debtor raised certain issues even one of the issues is the excess payment was made and there is no due of the outstanding debt, which is payable to the Operational Creditor. In view of Section 8(2) of the IBC, 2016, the Corporate Debtor, after receiving the demand notice is required to bring to the notice of the Operational Creditor, the existence of disputes or record of pendency of the suit or arbitration proceedings before the receipt of the notice or produce the document to show that the payment of non-operational debt has been made - In view of that provision of law, when we shall consider the case in hand then we find, admittedly, in the case in hand, the Corporate Debtor has raised the dispute prior to the receipt of the demand notice and the facts which the Corporate Debtor has raised some of the facts has also been admitted by the Operational Creditor that is the agreement is not properly signed by the parties and both the parties are placing reliance on the different draft agreement, which in our considered view can only be decided by the Court of a competent jurisdiction having jurisdiction to decide the issue. Since there is a pre-existing dispute between the parties, therefore, we have no option but to reject the prayer of the Operational Creditor to initiate proceedings under Section 9 of IBC, 2016 - application dismissed.

Summary

Issues Involved:
1. Maintainability of the application under Section 9 of the IBC, 2016.
2. Existence of an operational debt and default by the Corporate Debtor.
3. Pre-existing disputes between the parties.
4. Validity and enforceability of the agreement between the parties.
5. Compliance with procedural requirements under Section 9 of the IBC, 2016.

Issue-wise Detailed Analysis:

1. Maintainability of the application under Section 9 of the IBC, 2016:
The Corporate Debtor argued that the application was not maintainable due to the absence of personal debt and pre-existing disputes. The Tribunal examined whether the application met the criteria under Section 9 of the IBC, 2016, which includes the requirement of a demand notice and the absence of disputes. The Tribunal found that the Corporate Debtor had raised disputes prior to the receipt of the demand notice, making the application non-maintainable.

2. Existence of an operational debt and default by the Corporate Debtor:
The Operational Creditor claimed an outstanding amount of ?88,37,700/- for services rendered. The Corporate Debtor contended that there was no default and that they had made excess payments. The Tribunal noted that the Corporate Debtor had raised issues regarding the payment and engagement of employees, and the Operational Creditor had not satisfactorily addressed these issues. Therefore, the Tribunal found that there was no clear evidence of default by the Corporate Debtor.

3. Pre-existing disputes between the parties:
The Corporate Debtor had sent legal notices on 14th March 2018 and 25th April 2018, raising disputes about the services provided and payments made. The Tribunal found that these notices were sent before the demand notice and raised substantial issues, including the quality of services and excess payments. The Tribunal concluded that there was a pre-existing dispute, which is a ground for rejecting the application under Section 9 of the IBC, 2016.

4. Validity and enforceability of the agreement between the parties:
The Tribunal examined the agreement proposed by the Operational Creditor and found that it was never signed by both parties. The draft agreement sent by the Corporate Debtor was modified by the Operational Creditor, but the modifications were not accepted. The Tribunal held that there was no valid and enforceable agreement between the parties, which further supported the existence of disputes.

5. Compliance with procedural requirements under Section 9 of the IBC, 2016:
The Tribunal reviewed the compliance with procedural requirements, including the delivery of a demand notice and the filing of an affidavit under Section 9(3)(b). The Tribunal found that the affidavit filed by the Operational Creditor was not accurate, as it did not acknowledge the pre-existing disputes raised by the Corporate Debtor. This non-compliance with procedural requirements contributed to the rejection of the application.

Conclusion:
The Tribunal concluded that there was a pre-existing dispute between the parties regarding the terms and conditions of the agreement, payment of salaries, and engagement of employees. The Tribunal held that the application under Section 9 of the IBC, 2016, was not maintainable due to these disputes and procedural non-compliance. Consequently, the application was dismissed.