2017 (12) TMI 648 - Tri - Companies Law

Corporate insolvency procedure - Held that - A plausible dispute is shown to exist as between the parties to stave of the insolvency process by the Corporate Debtor, as contemplated under the provisions of IBC, 2016. In addition, it is also noticed that the certificate from the bankers is not in conformity as per section 9(3)(c) of IBC, 2016 inasmuch as the certificate does not disclose the amount of unpaid liability. Thus, taking into consideration the above facts and circumstances of the case, we are constrained to dismiss this Petition but without costs.

Issues:
1. Application by Operational Creditor for unpaid debt.
2. Dispute regarding quality of services provided.
3. Compliance with statutory notice requirements.
4. Production of certificate from bankers.
5. Existence of pre-existing dispute.
6. Summary jurisdiction to examine disputes.
7. Compliance with Section 9(3)(c) of IBC, 2016.

Analysis:
1. The Operational Creditor filed an application against the Corporate Debtor for unpaid debt arising from an outdoor display campaign. The Operational Creditor claimed a balance amount of ?61,85,400, along with interest, totaling ?91,49,383. Despite repeated demands and notices, the Corporate Debtor failed to make the payment, leading to the initiation of the Corporate Insolvency Resolution Process (CIRP).

2. The Corporate Debtor disputed the quality of services provided by the Operational Creditor during the outdoor display campaign. Allegations included a lack of bright lights on hoardings and frequent electrical problems affecting the display quality. The Corporate Debtor also highlighted a statutory notice issued under the Companies Act, 1956, and a notice of dispute sent regarding the alleged debt.

3. The Tribunal directed the Operational Creditor to produce a certificate from bankers and an affidavit regarding any notice of dispute. The Corporate Debtor contended that the Operational Creditor failed to disclose the statutory notice and the notice of dispute adequately. The Corporate Debtor argued that non-compliance with these requirements should lead to the dismissal of the petition.

4. The delay in producing the certificate from bankers was raised as an issue by the Corporate Debtor. The Operational Creditor eventually produced the certificate, but the Corporate Debtor claimed it did not comply with Section 9(3)(c) of IBC, 2016, as it did not disclose the amount of unpaid liability. The Corporate Debtor argued that this non-compliance should result in the dismissal of the petition.

5. The Corporate Debtor emphasized the existence of a pre-existing dispute between the parties, as evidenced by the reply to the statutory notice and the ongoing disagreements regarding the quality of services provided. The Corporate Debtor contended that the presence of a dispute should prevent the insolvency process from proceeding.

6. The Tribunal, after considering the arguments of both parties, concluded that a plausible dispute existed between the Operational Creditor and the Corporate Debtor regarding the quality of services provided. The Tribunal cited the Supreme Court's decision in Mobilox Innovations (P.) Ltd. v. Kirusa Software Private Limited, emphasizing the need for further investigation into plausible contentions before proceeding with insolvency. As a result, the petition was dismissed.

7. In light of the non-compliance with statutory notice requirements and the lack of a conclusive certificate from bankers, the Tribunal dismissed the petition without costs, highlighting the importance of addressing disputes and complying with the provisions of IBC, 2016.

← Previous Next →