2022 (6) TMI 867 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - complaint under section 138 of the N.I.Act, 1881 pending between the parties - pre-existing disputes pending between the parties - HELD THAT - It is clear that in reply to the demand notice, the Corporate Debtor had referred to some disputes pending before the Criminal Court, Chennai and had further stated that the letters and correspondence will be sent to the Operational Creditor shortly. In continuation thereof, the Corporate Debtor has further referred to those disputes between the parties in its reply affidavit also and during the course of arguments also, those very documents have been placed before the Bench. Since the complaint under section 138 of the N.I.Act, 1881 had been pending between the parties and certain pre-existing disputes had been pending between the parties, this petition will have to be rejected. Petition dismissed.

Issues Involved:
1. Maintainability of the application under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Existence of a pre-existing dispute between the Operational Creditor and the Corporate Debtor.
3. Quality of goods supplied by the Operational Creditor.
4. Pendency of proceedings under Section 138 of the Negotiable Instruments Act, 1881.

Issue-wise Detailed Analysis:

1. Maintainability of the application under Section 9 of the Insolvency and Bankruptcy Code, 2016:
The Corporate Debtor contended that the application is not maintainable as framed in law and on facts. They argued that the application is barred by principles of estoppel, waiver, and acquiescence. Additionally, the Corporate Debtor claimed that the Operational Creditor had no cause of action for initiating the insolvency resolution process. The Tribunal noted that the application was complete in all respects and filed within the limitation period, fulfilling all criteria under the Insolvency and Bankruptcy Code, 2016.

2. Existence of a pre-existing dispute between the Operational Creditor and the Corporate Debtor:
The Corporate Debtor argued that there was an existing dispute regarding the quality of goods supplied before the demand notice was issued. They provided evidence of correspondence dating back to 2017, where issues regarding the quality of materials were raised. The Operational Creditor, however, did not address these complaints adequately. The Tribunal found that the Corporate Debtor had indeed raised disputes about the quality of materials supplied, which were ignored by the Operational Creditor. The Tribunal concluded that the existence of such disputes precluded the initiation of insolvency proceedings under Section 9 of the Code.

3. Quality of goods supplied by the Operational Creditor:
The Corporate Debtor claimed that the materials supplied by the Operational Creditor were of inferior quality, causing significant losses. They provided multiple correspondences and documents to support their claim. The Operational Creditor, on the other hand, did not provide sufficient evidence to refute these claims. The Tribunal observed that the Corporate Debtor had consistently raised issues regarding the quality of goods, which were not adequately addressed by the Operational Creditor.

4. Pendency of proceedings under Section 138 of the Negotiable Instruments Act, 1881:
The Corporate Debtor highlighted that proceedings under Section 138 of the Negotiable Instruments Act, 1881, were pending between the parties. They argued that these proceedings indicated a pre-existing dispute. The Tribunal noted that the pendency of such proceedings supported the existence of a dispute between the parties. The Tribunal referred to the decision of the Hon'ble Supreme Court in "R Vijayan vs Baby and Another," which stated that proceedings under Section 138 are essentially civil cases for the recovery of money.

Conclusion:
After reviewing the arguments and evidence presented by both parties, the Tribunal concluded that there were pre-existing disputes between the Operational Creditor and the Corporate Debtor. These disputes were related to the quality of goods supplied and were raised before the demand notice was issued. Additionally, the pendency of proceedings under Section 138 of the Negotiable Instruments Act further supported the existence of a dispute. Consequently, the Tribunal dismissed the application under Section 9 of the Insolvency and Bankruptcy Code, 2016, as it was not maintainable due to the pre-existing disputes.

Order:
C.P (IB) No.1780/KB/2019 is dismissed. Certified copies of the order may be issued to all concerned parties upon compliance with requisite formalities. Order signed on the 20th day of May, 2022.

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