2021 (8) TMI 761 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - compliance with mandatory requirement u/s 9(3)(b) of IBC or not - existence of debt and dispute or not - HELD THAT - This bench notes that there are pre-existing disputes between the Petitioner and the Corporate Debtor. This bench notes that in this Petition, several invoices have been annexed and to explain the same, excel sheet has been annexed by the respondent. This file contains two sheets, the 1st excel sheet provides explanation in a tabular excel format of all the customers who have booked units in the said project with the involvement of the Operational Creditor. This excel sheet also provides information regarding each customer to verify whether the bookings have been done through the Operational Creditor or not. From the above, it is clear that most of the customers have booked the flats from different sources viz. with a reference of his friend, though newspaper etc. and not through the Petitioner. In view of this, this bench is of the view that no brokerage arises in the flat bookings relating to the customers who have booked flat from the sources other than brokerage. It is therefore clear to the bench that the Corporate Debtor had raised dispute before the Demand Notice was raised by the Petitioner. The Corporate Debtor had clearly intimated in its email dated 01.03.2017 about the dispute between the parties and also that no amount was payable to the Operational Creditor. Petition dismissed.

Summary

Issues:
1. Maintainability of the petition under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Dispute regarding the outstanding amount and the validity of the claim.
3. Interpretation of the agreement between the parties and the obligations therein.

Issue 1: Maintainability of the petition under Section 9 of the Insolvency and Bankruptcy Code, 2016

The petitioner, Indiabulls Distribution Services Ltd., filed a petition seeking initiation of Corporate Insolvency Resolution Process (CIRP) against Xrbia Developers Limited under Section 9 of the Insolvency and Bankruptcy Code, 2016. The respondent raised objections to the maintainability of the petition, citing non-compliance with the mandatory requirement of furnishing an affidavit as per section 9(3)(b) of the Code. The respondent argued that the petition should be rejected due to this deficiency. Additionally, the respondent claimed that a pre-existing dispute existed between the parties, as evidenced by email exchanges and attachments, indicating that no amount was payable to the petitioner.

Issue 2: Dispute regarding the outstanding amount and the validity of the claim

The petitioner claimed an outstanding amount of ?61,69,488 from the respondent as marketing fee/brokerage as per the agreement between them. However, discrepancies arose regarding the amount claimed, with different figures mentioned in various documents. The respondent contended that the petitioner falsely claimed brokerage for bookings not involving the petitioner. The respondent provided evidence, including an Excel sheet with customer details, to demonstrate that most bookings were not through the petitioner. The respondent also highlighted clauses in the agreement indicating conditions for brokerage payment and adjustments based on customer payments and cancellations. The respondent communicated the dispute to the petitioner before the petition was filed, emphasizing that no amount was payable due to the lack of involvement of the petitioner in certain bookings.

Issue 3: Interpretation of the agreement between the parties and the obligations therein

The agreement between the parties specified the terms for brokerage payments based on bookings and customer payments. Clauses in the agreement outlined conditions where the petitioner would be entitled to brokerage fees or adjustments based on customer actions. The tribunal noted the importance of these clauses in determining the validity of the claim and the obligations of both parties. The tribunal analyzed the discrepancies in the claimed amount, the evidence provided by the respondent, and the communication of the dispute before the demand notice was issued. Ultimately, considering the pre-existing disputes and lack of clarity on the claimed amount, the tribunal dismissed the petition, stating that no amount was payable to the petitioner based on the circumstances presented.

This detailed analysis of the judgment provides insights into the legal reasoning and findings regarding the issues raised in the case between the petitioner and the respondent before the National Company Law Tribunal, Mumbai Bench.