2023 (3) TMI 837 - AT - Insolvency and Bankruptcy

Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of disputes between the parties prior to the issuance of the Demand Notice - HELD THAT - It is observed that the emails dated 07.08.2014, 27.03.2015, 01.02.2016, 25.03.2016 and 08.04.2016 sent by the Respondent to the Appellant shows that there was pre-existence dispute between the parties before issuance of Demand Notice which is not permissible in IBC to initiate the Corporate Insolvency Resolution Process. Therefore, the reasons assigned by the Adjudicating Authority in the impugned order is fully agreed upon. Keeping in view of the facts, there are no merit found in the Appeal to interfere with the order impugned passed by the Adjudicating Authority. The impugned order passed by the Adjudicating Authority (National Company Law Tribunal, Court No. IV, New Delhi) is hereby affirmed. Appeal dismissed.

Summary

Issues Involved:
1. Existence of pre-existing disputes between the parties.
2. Validity of the service of the Demand Notice.
3. Acknowledgement of debt by the Respondent/Corporate Debtor.

Summary:

1. Existence of Pre-existing Disputes:
The Appellant filed a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, which was dismissed by the Adjudicating Authority due to pre-existing disputes. The Respondent/Corporate Debtor contended that the goods supplied were defective and communicated this through multiple emails dated 07.08.2014, 27.03.2015, 01.02.2016, 25.03.2016, and 08.04.2016. The Adjudicating Authority found these emails to be evidence of a pre-existing dispute, thus making the initiation of CIRP under IBC impermissible.

2. Validity of the Service of the Demand Notice:
The Appellant served a Demand Notice dated 01.11.2017 under Section 8 of the IBC, which was returned with the remark "Left." The Respondent argued that this did not amount to valid service. The Tribunal cited precedents where non-receipt of the notice or its return with such remarks does not constitute valid service, thereby supporting the Respondent's claim.

3. Acknowledgement of Debt:
The Appellant presented ledgers and Sales Tax Forms as evidence of the acknowledged debt. However, the Respondent disputed the authenticity of these documents, arguing that they did not bear the authorized signatures or the official seal. The Tribunal noted that even if the ledgers were considered, they could not be taken as an acknowledgment of debt due to the existence of disputes highlighted in the emails. The Tribunal also referenced the case "V Padmakumar v. Stressed Assets Stabilisation Fund (SASF)" to assert that representation of debt in financials does not amount to acknowledgment of debt.

Conclusion:
The Tribunal affirmed the decision of the Adjudicating Authority, holding that the pre-existing disputes between the parties before the issuance of the Demand Notice made the initiation of CIRP under IBC impermissible. The appeal was dismissed, and the impugned order dated 05.07.2021 was upheld.