9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (11) TMI 124 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - In view of the averment made at page 11 of Reply Affidavit of the Respondent, despite the Appellant acknowledged receipt of such notes through email and shows that the credit note issued by the Appellant has not booked in QEL ledger. Operational Creditor wanted to discuss why Credit Note was issued. Through email dated 28.11.2018 at page 301 of the Appeal Paper Book the Appellant resisted to accept Debit Note, agreed to send ledger statement for reconciliation. E-mail dated 28.11.2018 (Page 304) sent by Corporate Debtor to Operational Creditor on 28.11.2018 (i.e. before Notice under Section 8 of IBC dated 20.04.2019) clearly complained of deficiency in service by frequent trippings causing Corporate Debtor to consume power from E.B. at a higher cost. It shows that there was a pre-existing dispute between the parties - Ld. Adjudicating Authority has rightly relied on the judgment of Hon ble Supreme Court in Mobilox Innovations Private Ltd. Vs Kirusa Software Private Ltd., 2017 (9) TMI 1270 - SUPREME COURT have held that there was a pre-existing dispute between the parties and rightly dismissed the Application under Section 9 of the IBC. The Appellant has failed to demonstrate that the impugned order suffers from any legal infirmity - Appeal dismissed.
Issues Involved:
1. Existence of Operational Debt 2. Acknowledgment of Debt 3. Pre-existing Dispute 4. Adjudicating Authority's Decision Detailed Analysis: 1. Existence of Operational Debt: The Appellant (Operational Creditor) claimed that the Respondent (Corporate Debtor) owed a sum of INR 1,10,04,298 for services and equipment leased under various agreements. The Appellant maintained mutual open and current running accounts for these transactions and raised invoices fortnightly, which the Respondent was required to pay within thirty days. The last payment from the Respondent was made on 6th October 2018, and the last invoice was raised on 1st February 2019. The Appellant sent multiple emails requesting payment, and the Respondent acknowledged the debt in an email dated 19th July 2018. 2. Acknowledgment of Debt: The Appellant argued that the Respondent had acknowledged the debt of INR 1.12 crore in an email dated 19th July 2018, which included a repayment plan. The Appellant also sent a demand notice on 20th April 2019, claiming a total amount of INR 1,17,65,461, including interest. However, the Respondent replied to the demand notice on 28th April 2019, denying the acknowledgment of debt and stating that the email was sent in good faith and not as a formal acknowledgment. 3. Pre-existing Dispute: The Respondent contended that there was a pre-existing dispute regarding the operational debt. They argued that the power supply from the Appellant was irregular, causing them to incur additional costs by sourcing power from the Tamil Nadu Electricity Board. The Respondent raised a debit note on 28th November 2018 for INR 55,53,730 due to frequent tripping and service deficiencies, which the Appellant initially resisted but later agreed to reconcile. The Adjudicating Authority noted these disputes and relied on the Supreme Court's judgment in "Mobilox Innovations Private Ltd. Vs Kirusa Software Private Ltd., 2018 (1) SCC 353," which mandates rejecting an application under Section 9 of the IBC if a pre-existing dispute is established. 4. Adjudicating Authority's Decision: The Adjudicating Authority dismissed the Appellant's application under Section 9 of the IBC, 2016, citing the pre-existing dispute between the parties. The Authority considered the Respondent's reply and the email communications, which indicated ongoing disputes about the operational debt. The Appellate Tribunal, after reviewing the records and arguments, upheld the Adjudicating Authority's decision, stating that the Appellant failed to demonstrate any legal infirmity in the impugned order. Conclusion: The Appeal was dismissed due to the existence of a pre-existing dispute, as evidenced by the Respondent's communications and the debit note raised for service deficiencies. The Tribunal found no merit in the Appellant's claims and upheld the Adjudicating Authority's decision, aligning with the principles laid out in the "Mobilox Innovations" case.
|
