2021 (9) TMI 685 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - non-compliance with mandatory requirement u/s 9(3)(b) of IBC - HELD THAT - This Petition has been filed by the Operational Creditor, M/s. Indiabulls Distribution Services Ltd. u/s. 9 for a total claim amount of ₹ 17,35,762/-. The claim is based on an agreement dated 09.03.2016 between the Operational Creditor and the Corporate Debtor wherein the Operational Creditor was appointed as a Consultant/Broker to market the Units in the project named 'Xrbia Eiffle City II' of the Corporate Debtor situated in district Raigad. This bench notes that the brokerage agreed between the parties was 8.5% of the total sale consideration only on the Units which has been booked by the Consultant (Operational Creditor). If unit is cancelled by the prospective purchaser, the Operational Creditor shall not be entitled to any brokerage. In addition, if the purchaser does not pay the minimum of 40%, in case of Self Funded Customer, or 20% in case of a Customer availing loan facility, then no amount will be payable as brokerage fee and any brokerage already paid shall be adjusted from the brokerage future due - the amount of debt does not match the invoices attached to the Petition which states as ₹ 17,35,762/-. Similarly, in the notice issued by the Petitioner to the Corporate Debtor on 20.12.2016 the amount due is shown as ₹ 8,59,655/-. This shows discrepancies/lack of clarity on the amount of debt being claimed by the Petitioner. Be that it may, 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. Thus, it is clear that most of the customers have booked the flats from different sources viz. with a reference of a friend, through 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 flats from the sources other than brokerage. It is evident to the bench that the Corporate Debtor had raised dispute before filing of the Petition. 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:
Initiation of Corporate Insolvency Resolution Process under Section 9 of Insolvency and Bankruptcy Code, 2016; Dispute regarding maintainability of the petition; Existence of debt dispute between the parties; Discrepancies in the amount of debt claimed by the petitioner.

Analysis:
The petition was filed by the Operational Creditor seeking initiation of Corporate Insolvency Resolution Process against the Corporate Debtor for an outstanding amount of ?17,35,762 as marketing fee/brokerage under an agreement. The Operational Creditor claimed that the debt was due since 30.09.2016, and despite reminders, the payment was not made by the Corporate Debtor. However, the Corporate Debtor raised concerns about the maintainability of the petition due to non-compliance with the mandatory requirement of furnishing an affidavit as per Section 9(3)(b) of the IBC. The Corporate Debtor argued that there was a pre-existing dispute between the parties regarding the debt claimed by the Operational Creditor.

The Corporate Debtor contended that the Operational Creditor failed to achieve the agreed booking target as per the agreement and that the bookings claimed by the Operational Creditor were not made through their involvement. The Corporate Debtor provided evidence, including call recordings and an Excel sheet, to support their claim that most customers booked units through sources other than the Operational Creditor. Additionally, discrepancies were highlighted in the amount of debt claimed by the Operational Creditor, indicating lack of clarity and potential frivolous claims.

The Tribunal analyzed the agreement between the parties and noted that as per the agreement's clauses, the Operational Creditor was entitled to brokerage only on units booked through their involvement, with conditions for cancellation and payment percentages by customers. Considering the pre-existing disputes, lack of clarity in the debt amount, and evidence provided by the Corporate Debtor, the Tribunal found that no brokerage was payable for units booked through sources other than the Operational Creditor. The Tribunal dismissed the petition, stating that the Corporate Debtor had raised a dispute before the filing of the petition, and no amount was payable to the Operational Creditor based on the circumstances presented.

In conclusion, the Tribunal dismissed the petition, emphasizing the pre-existing disputes, lack of clarity in the debt amount claimed, and the evidence provided by the Corporate Debtor regarding the bookings made through sources other than the Operational Creditor. The decision was communicated to both parties by the Registry.