Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2021 (5) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (5) TMI 855 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT - Reliance can be placed in the case of Mobilox Innovations Private Limited vs. Kirusa Software Pvt. Ltd. 2017 (9) TMI 1270 - SUPREME COURT where it was held that There is a pre-existing dispute between the parties which is evident from the email correspondence between the parties which was produced before this Adjudicating Authority by the Corporate Debtor along with its Counter. The Corporate Debtor had duly replied to the demand notice of the Operational Creditor and the disputes between them are pointed out in its reply. In view of the Apex Court's observation and the existence of dispute between the parties, this Adjudicating Authority has to reject the application - application dismissed.
Issues:
Insolvency and Bankruptcy Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process. Analysis: The case involved an Insolvency and Bankruptcy Application filed by an Operational Creditor against a Corporate Debtor for non-payment of dues amounting to INR 22,75,514/- along with interest. The Operational Creditor, engaged in supplying medical appliances, claimed that the Corporate Debtor failed to pay for the supplied goods and advances. The Corporate Debtor, a private company manufacturing surgical products, disputed the claim, alleging suppression of facts and pre-existing disputes. The Operational Creditor issued a demand notice, followed by the Corporate Debtor's denial and counterclaim of INR 26,80,000/-. The Operational Creditor then filed an application for Corporate Insolvency Resolution Process (CIRP) due to the debt default. The Corporate Debtor contended that the claim by the Operational Creditor was not maintainable as it was in the nature of loans and advances, which, according to Section 5(21) of the IB Code, 2016, does not constitute operational debt. The Corporate Debtor also cited a previous ruling by the NCLAT regarding advance payments not being categorized as operational debt. Additionally, the Corporate Debtor claimed that the only payable amount was INR 2,48,845/- for goods supplied, which was time-barred and barred by limitation. Moreover, the Corporate Debtor argued that the Operational Creditor suppressed pre-existing disputes and owed an amount of INR 26.84 lakh to the Corporate Debtor for goods supplied and commissions. After considering submissions from both parties, the Adjudicating Authority referred to a Supreme Court observation in Mobilox Innovations Private Limited vs. Kirusa Software Pvt. Ltd., highlighting the necessity of a genuine dispute for rejecting an insolvency application. The Adjudicating Authority found evidence of a pre-existing dispute between the parties based on email correspondences and the Corporate Debtor's response to the demand notice. Consequently, the application was dismissed, emphasizing the importance of a plausible contention requiring further investigation and the existence of a genuine dispute. The Adjudicating Authority directed the Registry to communicate the order to the concerned parties promptly.
|