2023 (10) TMI 605 - AT - Insolvency and Bankruptcy

Admissibility of application under Section 9 of the IBC - initiation of CIRP - Corporate Debtor denied the demand raised by the Operational Creditor in the reply to the Section 8 demand notice - debt barred by limitation - HELD THAT - The wordings of the email do not show that the Corporate Debtor had denied or disputed the existence of outstanding debt qua the Operational Creditor. All that can be inferred from a plain reading of this letter is that they were in the process of reconciliation of accounts on completion of which they were to determine the payment plan. By no stretch of extrapolation can it be concluded that any dispute qua the debt was raised in the said email or the payment was denied by the Corporate Debtor therein. Even after the Corporate Debtor mentioned about reconciliation of accounts in their email the Operational Creditor again sent an email on 19.05.2018 seeking a confirmation reply from the Corporate Debtor with regard to the outstanding balance payable to them towards services rendered - The email was again followed up a day later on 20.06.2018 by the Operational Creditor seeking release of outstanding payment and the schedule of payment as is placed at page 114 of APB. This shows that the Operational Creditor had been consistently pressing for release of their outstanding amount while there is nothing on record to show that the Corporate Debtor objected to the claims raised by the Operational Creditor or disputed the issue of outstanding payment raised by the Operational Creditor. There are no material having been placed on record to show that the Corporate Debtor had claimed an amount of Rs.7, 71, 434/- as receivable from the Operational Creditor prior to the issue of demand notice. The existence of debt due and payable has not been controverted by the Corporate Debtor in the emails exchanged by them with the Operational Creditor. The Adjudicating Authority in the present case has duly considered the reply and submissions made by the Corporate Debtor and correctly come to the conclusion that there is no ground to establish any real and substantial pre-existing dispute which can thwart the admission of Section 9 application against the Corporate Debtor - the Adjudicating Authority has rightly admitted the application of the Operational Creditor filed under Section 9 of IBC. The impugned order does not warrant any interference - Appeal dismissed.

Summary

Issues Involved:
1. Limitation Period
2. Pre-existing Dispute
3. Acknowledgment of Debt

Summary:

Limitation Period:
The Corporate Debtor argued that the claim was barred by limitation, as the invoices were beyond the limitation period. The Adjudicating Authority referenced the Supreme Court's decision in Asset Reconstruction Company (India) Limited v. Bishal Jaiswal, which held that entries in the Balance Sheet amount to acknowledgment of debt, thereby extending the limitation period under Section 18 of the Limitation Act. The email dated 22.01.2018 was considered an acknowledgment of debt, thus the petition was not barred by limitation. The Tribunal agreed with the Respondent No. 1 that the Section 9 petition filed on 15.02.2020 was within the limitation period.

Pre-existing Dispute:
The Appellant contended that there was a pre-existing dispute regarding the quality of services, which should have led to the rejection of the Section 9 application. The Adjudicating Authority found no substantial evidence of a pre-existing dispute. The email dated 22.01.2018 from the Corporate Debtor acknowledged the debt without mentioning any disputes. The Tribunal, guided by the principles in Mobilox Innovations Private Limited v. Kirusa Software Private Limited, concluded that there was no genuine and real pre-existing dispute discernible in this case.

Acknowledgment of Debt:
The Appellant questioned the authenticity of the email dated 22.01.2018, arguing that an unsigned electronic document does not constitute a valid acknowledgment for extending the limitation period. However, the Tribunal found that the email and subsequent communications from the Corporate Debtor did not deny or dispute the outstanding debt. The Tribunal noted that the Corporate Debtor consistently failed to controvert the existence of the debt in their communications.

Conclusion:
The Tribunal upheld the Adjudicating Authority's decision to admit the Section 9 application, initiating the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. The appeal was dismissed, and the Interim Resolution Professional (IRP) was directed to proceed with the CIRP as per law. The Tribunal also ordered the refund of Rs.1,10,05,215/- deposited by the Appellant.