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2022 (7) TMI 577 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - unregistered partnership firm can file for CIRP against a Corporate Debtor or not? - existence of debt and dispute or not. Whether an application filed by an unregistered partnership firm is maintainable or not? - Section 69 of the Partnership Act,1932 - HELD THAT - The ban on unregistered partnership firm in filing other proceeding is only when the suit in relation to such proceeding is pending before any Court. It seems that there is no pending suit before any court of law relating to the debt. Therefore, in the absence of any pending suit before any Court of law, Section 69(3) of the Partnership Act, 1932 will not come to the aid of the Corporate Debtor in the present case. Pre-existing dispute - HELD THAT - The Corporate debtor has already raised the dispute in a meeting held on 11.11.2017 and the Operational Creditor has sent the demand notice on 14.11.2017. Therefore, the dispute was raised prior to the issuance of Demand Notice and the nature of dispute raised by the Corporate Debtor seems to be genuine. This Bench hereby holds that dispute is in existence between them as on the date of receipt of Section 8 notice by the Corporate Debtor. Petition dismissed.
Issues Involved:
1. Whether an unregistered partnership firm can file for CIRP against a Corporate Debtor? 2. Whether there is any pre-existing dispute in the present case? Issue-wise Detailed Analysis: 1. Whether an unregistered partnership firm can file for CIRP against a Corporate Debtor? The application was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016) by an unregistered partnership firm (Operational Creditor) against the Corporate Debtor for default in repaying the principal amount and interest. The Corporate Debtor argued that the application is barred by Section 69(3) of the Partnership Act, 1932, which prevents an unregistered firm from enforcing a right arising from a contract. The Corporate Debtor cited the case of Jagdish Chandra Gupta Vs. Kajaria Traders (India) Ltd., where the Supreme Court held that "other proceedings" in Section 69(3) include any proceedings to enforce a right arising from a contract. The Operational Creditor countered that the petition for CIRP is not a "suit" within the meaning of Section 69(2) of the Partnership Act and that unregistered firms fall under the definition of an 'Operational Creditor' as per Section 5(20) of the IBC, 2016. They referenced the judgment in Shree Dev Chemicals Corporation Vs. Gammon India Limited, where it was held that applications under the IBC are not "suits" but proceedings, and thus Section 69(2) does not apply. The tribunal also considered the Supreme Court's decision in Umesh Goel Vs. Himachal Pradesh Cooperative Group Housing Society Ltd., which stated that the ban on unregistered firms applies only when a suit related to the proceeding is pending in court. Since no such suit was pending, Section 69(3) did not bar the present application. 2. Whether there is any pre-existing dispute in the present case? The Corporate Debtor argued that there was a pre-existing dispute, citing a joint meeting on 11.11.2017 where discrepancies in the work done by the Operational Creditor were discussed. The Corporate Debtor raised issues such as poor concrete performance, deviations from the required dimensions in construction, and other quality concerns. They also mentioned that the Operational Creditor was liable for penalties due to delays in work completion. The Operational Creditor denied these allegations, stating that they adhered to quality standards and obtained necessary approvals. They attributed the delays to issues like payment delays, water shortages, and frequent changes in drawings by the Corporate Debtor. They argued that the sums demanded were legitimate and supported by documentation. Upon reviewing the submissions, the tribunal noted that the dispute was raised by the Corporate Debtor in a meeting held on 11.11.2017, prior to the issuance of the demand notice on 14.11.2017. The tribunal found the nature of the dispute to be genuine and concluded that a pre-existing dispute existed as of the date of receipt of the Section 8 notice by the Corporate Debtor. Conclusion: The tribunal dismissed the Company Petition, holding that while the application by an unregistered partnership firm was maintainable under the IBC, there was a pre-existing dispute between the parties, which barred the initiation of CIRP.
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