2022 (7) TMI 363 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - It was informed by the Corporate Debtor that the quality of goods supplied had deteriorated - pre-existing dispute or not - HELD THAT - The Corporate Debtor has in its reply referred to various letters written by the Corporate Debtor to the Operational Creditor, had raised the issue of quality of goods being inferior in terms of printing, quality of paper and glue. It was also mentioned in the letter dated 30th March, 2019 that the rate charged by the Operational Creditor was higher than other supplier, which was promised to be revised, for which the Operational Creditor had issued the bills at the old rates. The Corporate Debtor had, therefore, returned the bills issued by the Operational Creditor after making necessary correction in that, requesting the Operational Creditor to send revised bills. It was written by the Corporate Debtor to the Operational Creditor that they would start giving order only when the Operational Creditor assured that quality of paper, printing and glue would be upto mark. The Corporate Debtor had further complained of delayed delivery of goods which had caused business loss to the Corporate. Another issue relating to charges on account of transportation was also raised in the said letter. In view of the letters issued before the service of notice under Section 8 of the Code by the Operational Creditor, there is a clear case of preexisting dispute between the parties and, therefore, this petition is not maintainable and is therefore, rejected.

Issues Involved:

1. Whether the Corporate Debtor is indebted to the Operational Creditor.
2. Whether there is a pre-existing dispute between the parties.
3. Compliance with the mandatory provisions of the Insolvency and Bankruptcy Code, 2016.

Issue-wise Detailed Analysis:

1. Indebtedness of the Corporate Debtor:

The Operational Creditor, P B Holotech (India) Private Limited, filed a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016, seeking initiation of corporate insolvency resolution process against the Corporate Debtor, Farista Vanijya Private Limited. The Operational Creditor claimed that the Corporate Debtor was indebted for a principal sum of Rs. 20,50,572/- along with interest of Rs. 8,64,419/- at the rate of 24% per annum. Despite repeated demands, the Corporate Debtor failed to pay the outstanding amount. The Operational Creditor provided evidence of the transactions through ledger and invoices, indicating that goods were sold, supplied, and delivered to the Corporate Debtor from May 2017 to September 2017. The Corporate Debtor acknowledged receipt of the goods without any objection regarding quality or quantity. However, the Corporate Debtor made only partial payments and left the majority of the dues unpaid.

2. Pre-existing Dispute:

The Corporate Debtor contested the petition, arguing that there was a pre-existing dispute regarding the quality and pricing of the goods supplied. The Corporate Debtor alleged that the goods supplied were of inferior quality and that the rates charged were higher than those of other suppliers. Additionally, the Corporate Debtor claimed that the Operational Creditor had unjustifiably delayed deliveries and wrongfully included transportation charges in the bills. The Corporate Debtor had communicated these issues to the Operational Creditor through an email dated March 30, 2019, and reiterated the same in a reply to the notice issued under Section 8 of the Code. The Corporate Debtor provided evidence of these communications, asserting that the disputes were genuine and existed prior to the demand notice.

3. Compliance with Mandatory Provisions:

The Corporate Debtor argued that the petition was not maintainable due to non-compliance with mandatory provisions of Section 9(3)(b) and 9(3)(c) of the Insolvency and Bankruptcy Code, 2016. The Corporate Debtor claimed that there was no record of default with any information utility, which is a pre-condition for filing such a petition. The Operational Creditor, in its rejoinder, denied these allegations and maintained that the petition was in compliance with all necessary provisions and that the claims were legally enforceable.

Judgment:

The Tribunal found that there was a clear case of pre-existing dispute between the parties, as evidenced by the communications from the Corporate Debtor prior to the service of notice under Section 8 of the Code. The issues raised by the Corporate Debtor regarding the quality of goods, pricing, and additional charges were considered genuine disputes. Consequently, the petition was deemed not maintainable and was rejected.

Conclusion:

The petition filed by the Operational Creditor was rejected due to the existence of a pre-existing dispute between the parties regarding the quality and pricing of goods supplied, as well as compliance issues with the mandatory provisions of the Insolvency and Bankruptcy Code, 2016. The Tribunal emphasized that the disputes were genuine and existed prior to the demand notice, rendering the petition non-maintainable.

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