2024 (8) TMI 1110 - AT - Insolvency and Bankruptcy

Pr-existing dispute or not - whether in the instant case any preexisting dispute exists which would not allow initiation of Section 9 proceedings under the Code against the Appellant / Corporate Debtor/ Corporate Debtor? HELD THAT - It is not found that the claim of an operational creditor is undisputed and the operational debt remains unpaid. The Corporate Debtor received goods from Respondent No. 1 / Operational Creditor and has an outstanding debt exceeding Rs. 1 lakh - The Appellant / Corporate Debtor s claims of a pre-existing dispute due to the GST raids and alleged fake invoices are not substantiated with material on record as the correspondence and proceedings involving the GST authorities do not constitute a genuine preexisting dispute between the Corporate Debtor and Respondent No. 1 / Operational Creditor concerning the operational debt. The Appellant / Corporate Debtor's contentions that the company is solvent and the matter should be resolved through civil proceedings or arbitration are not relevant to the initiation of CIRP under the IBC. The appeal lacks merit as the Appellant / Corporate Debtor failed to demonstrate a pre-existing dispute as required under Section 9 of the IBC. The Adjudicating Authority rightly admitted the application filed by Respondent No. 1 / Operational Creditor and initiated the CIRP against the Corporate Debtor. Appeal dismissed.

Issues Involved:

1. Pre-existing dispute regarding GST payments and invoices.
2. Solvency of the Corporate Debtor.
3. Jurisdiction and scope of the Adjudicating Authority under Section 9 of the Code.
4. Validity of the demand notice and the initiation of CIRP.

Detailed Analysis:

1. Pre-existing Dispute Regarding GST Payments and Invoices:

The Appellant/Corporate Debtor argued that there was a pre-existing dispute concerning the payment of GST on the invoices issued by Respondent No. 1. This dispute was substantiated by raids conducted by the Directorate General of GST Intelligence and a writ petition filed before the Punjab and Haryana High Court. The Appellant contended that the invoices were under investigation for being bogus, thus questioning their genuineness. The Appellant also claimed to have sent emails on 27th and 28th May 2019, raising issues about GST payments. However, these emails were not presented before the Adjudicating Authority.

The Respondent countered that there was no pre-existing dispute between the parties regarding the invoices before the demand notice was issued. The Adjudicating Authority noted that the GST-related issues were between the Corporate Debtor and the GST Department, and not with the Operational Creditor. The Tribunal found that the GST returns filed by the Operational Creditor were on record and there was no legal case initiated against the Operational Creditor by the GST authorities.

2. Solvency of the Corporate Debtor:

The Appellant/Corporate Debtor claimed that the company was solvent, with an annual turnover exceeding Rs. 300 crore and export sales over Rs. 50 crore. The Appellant argued that the CIRP should not be initiated against a solvent company. However, the Tribunal held that the solvency of the company was not relevant to the initiation of CIRP under the IBC if there was an undisputed debt and default.

3. Jurisdiction and Scope of the Adjudicating Authority Under Section 9 of the Code:

The Appellant contended that the Adjudicating Authority improperly delved into the merits of the dispute by assessing the quantum of the alleged debt. The Tribunal reiterated that the Adjudicating Authority's role at the admission stage of a Section 9 application is limited to determining whether there is an operational debt exceeding Rs. 1 lakh, whether the debt is due and payable, and whether there is a pre-existing dispute. The Tribunal found that the Adjudicating Authority had correctly applied the three-fold test laid down by the Supreme Court in Mobilox Innovations Private Ltd vs Kirusa Software Private Ltd.

4. Validity of the Demand Notice and the Initiation of CIRP:

The Appellant argued that the demand notice was issued without authority and that the disputes between the parties were civil in nature, requiring resolution through civil courts or arbitration. The Tribunal noted that the demand notice was validly issued under Section 8 of the Code and that the existence of a dispute must be genuine and pre-existing to bar the initiation of CIRP. The Tribunal found that the Appellant failed to demonstrate a genuine pre-existing dispute and that the operational debt remained unpaid.

Conclusion:

The Tribunal concluded that the Appellant/Corporate Debtor failed to demonstrate a pre-existing dispute as required under Section 9 of the IBC. The Adjudicating Authority rightly admitted the application filed by Respondent No. 1/Operational Creditor and initiated the CIRP against the Corporate Debtor. The appeal was dismissed, and the CIRP against the Corporate Debtor was ordered to continue as per the provisions of the IBC.

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