2017 (12) TMI 397 - Tri - Insolvency and Bankruptcy

Corporate insolvency process - existence of dispute - Held that - There does not exist any dispute between the parties under the meaning and definition of section 5(3) of the IB Code, 2016 as the aforesaid civil suit is nowhere connected to instant petition. The instant petition pertains to insolvency proceedings whereas the civil suit filed before High Court belongs to recovery of money. Moreover, this Adjudicating Authority is of the opinion that there would have been a different situation, had the respondent initiate a case related to breach of warranty or defective goods against the petitioner. However, the respondent neither raised any demand of express warranty prior to the said reply notice nor sought for replacement of goods supplied to the respondent. In this case, the petitioner has filed a civil suit against the respondent and that too, after filing a winding up petition before the High Court. Otherwise also, the petitioner must have been aware of the well-established procedure of the winding up/insolvency process and would not have filed the civil suit before the Hon ble High Court to self-incriminate. Further, the learned senior counsel for the petitioner has stated that the Said civil suit has been filed just to save the limitation period for recovering monies from the respondent. This also reflects the bonafide on part of the petitioner. Thus, this Adjudicating authority is satisfied that the petitioner has made out his case by establishing that this Corporate Debtor has defaulted the payment dues on various occasions to this petitioner/OC and there is no dispute between the parties. In the circumstances, am inclined to admit the instant petition. The instant petition is admitted and order the commencement of the Corporate Insolvency Resolution Process which shall ordinarily get completed within 180 days, reckoning from the day of this order is passed.

Summary

Issues Involved:
1. Existence of a dispute under the Insolvency and Bankruptcy Code, 2016 (IB Code, 2016).
2. Pendency of a civil suit and its impact on the insolvency proceedings.
3. Admissibility of the petition under Section 9 of the IB Code, 2016.
4. Warranty and quality of goods supplied.
5. Commencement of the Corporate Insolvency Resolution Process (CIRP).

Issue-wise Detailed Analysis:

1. Existence of a Dispute:
The petitioner, M/s. CMI Energy India Private Limited, supplied cables to the respondent, M/s. Easun Reyrolle Limited, and raised invoices for the same. The respondent acknowledged a payable amount of ?699.42 lakhs but failed to clear the dues, leading the petitioner to issue a statutory notice under the Companies Act, 1956. The respondent's reply did not indicate any existing dispute or pending suit/arbitration proceedings. The tribunal noted that the respondent accepted the goods without raising any disputes regarding quality or warranty at the time of delivery, which implies acceptance under Section 42 of the Sale of Goods Act, 1930. The tribunal concluded that the respondent raised the issue of warranty only to evade payment obligations.

2. Pendency of a Civil Suit:
The petitioner filed a civil suit for recovery of ?11,65,95,344/- before the High Court of Delhi after filing the winding-up petition. The respondent argued that the pending civil suit constitutes an "existence of dispute" under the IB Code, 2016, referencing the judgment in Kirusa Software (P.) Ltd. v. Mobilox Innovations (P.) Ltd. The tribunal, however, clarified that the pendency of a civil suit filed by the petitioner does not equate to a dispute under Section 5(6) of the IB Code, 2016, as it pertains to recovery of money and not to the insolvency proceedings.

3. Admissibility of the Petition:
The respondent contended that the petition under Section 9 of the IB Code, 2016, is not maintainable due to the pending civil suit. The tribunal, however, differentiated between the nature of the civil suit and the insolvency proceedings, emphasizing that the latter is a right in rem benefiting the general body of creditors. The tribunal relied on the Supreme Court's interpretation in Mobilox Innovations (P.) Ltd. v. Kirusa Software Private Limited, which states that the existence of a dispute must be plausible and not a mere assertion without evidence.

4. Warranty and Quality of Goods Supplied:
The respondent claimed that the petitioner failed to provide a manufacturer's warranty, leading to the rejection of the goods. The tribunal found that the respondent did not raise any demand for an express warranty before the reply notice and did not seek the replacement of goods. The tribunal concluded that the respondent's claims about warranty and quality were raised only to avoid payment and were not genuine disputes.

5. Commencement of the Corporate Insolvency Resolution Process (CIRP):
The tribunal admitted the petition and ordered the commencement of the CIRP, to be completed within 180 days from the date of the order. A moratorium was declared, prohibiting the institution or continuation of suits, transferring or disposing of assets, and recovery actions against the corporate debtor. The tribunal directed the appointment of an Interim Resolution Professional (IRP) through the Insolvency and Bankruptcy Board of India (IBBI) and mandated cooperation from the corporate debtor's management.

Conclusion:
The tribunal concluded that there was no genuine dispute between the parties and admitted the petition, initiating the CIRP against the corporate debtor. The tribunal emphasized the distinction between insolvency proceedings and civil suits, ensuring the protection of creditors' rights under the IB Code, 2016.