2022 (3) TMI 1059 - 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 - HELD THAT - The corporate debtor has raised a pre-existing dispute as stated in its reply by sending debit note by way of 'Journal Voucher' dated 31.03.2018 which was sent to the applicant much prior to issuance of the demand notice under Section 8 dated 18.06.2019. Moreover, the corporate debtor had engaged a third party to complete the remaining work at the project site. There is 'Pre-existing dispute' which was raised by the corporate debtor on 31.03.2018 which is much prior to the issuance of demand notice dated 18.06.2019 served under section 8 of the Code. It is reiterated that the claim of the applicant has not been acknowledged by the corporate debtor and in fact there is a debit note issued by the corporate debtor with remarks for providing unsatisfactory services provided by them. Hence, the corporate debtor has to engage a third party to complete the work and the applicant was directed to remove its belongings from the project site w.e.f. June 2017. Thus, it is established on record that there is preexisting dispute between both the Applicant and Respondent. Hence, the Applicant failed to prove it's claim against the Corporate Debtor. The present petition stands rejected with no order to costs.

Summary

Issues:
Application under section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process based on operational debt claim.

Detailed Analysis:

Issue 1: Application for Initiation of Corporate Insolvency Resolution Process
The applicant, an operational creditor, filed an application under section 9 of the Insolvency and Bankruptcy Code, 2016 seeking initiation of Corporate Insolvency Resolution Process against the respondent company. The applicant, engaged in construction activities, claimed an unpaid operational debt of ?4,24,673 from the respondent company. The applicant had previously withdrawn a defective petition and refiled the present one. The respondent company had made partial payment but disputed the quality and timeliness of work done by the applicant.

Issue 2: Respondent's Objections and Pre-existing Dispute
The respondent company raised objections to the claim, alleging delays and unsatisfactory work by the applicant. The respondent claimed to have paid ?18,55,065 to the applicant and canceled the work contract due to poor services, engaging a third party to complete the remaining work. The respondent asserted a pre-existing dispute and provided a debit note for deficient services rendered by the applicant. The respondent's contentions were supported by a debit note dated 31.03.2018, issued prior to the demand notice from the applicant.

Issue 3: Judicial Precedent and Dispute Resolution
The Tribunal referred to a Supreme Court judgment emphasizing the need to differentiate genuine disputes from spurious claims. Citing the case of "Mobilox Innovative Private Limited vs. Kirusa Software Private Limited," the Tribunal highlighted the importance of investigating plausible contentions and rejecting frivolous defenses. The Tribunal concluded that a pre-existing dispute existed between the parties, as evidenced by the debit note issued by the respondent prior to the demand notice from the applicant. Consequently, the applicant's claim was not acknowledged, and the respondent was found to be justified in engaging a third party to complete the work.

Conclusion:
Based on the evidence presented and the legal principles applied, the Tribunal rejected the applicant's petition for initiation of Corporate Insolvency Resolution Process against the respondent company. The existence of a pre-existing dispute, as established by the respondent's actions and communications, led to the dismissal of the applicant's claim. The Tribunal emphasized the importance of genuine disputes and the need for thorough investigation before initiating insolvency proceedings.