2019 (2) TMI 967 - Tri - Insolvency and Bankruptcy

Initiating corporate insolvency resolution process - existence of dispute - claim of the corporate debtor for non-delivery of goods entrusted to the operational creditor - Held that - A claim of the corporate debtor for non-delivery of goods entrusted to the operational creditor was not resolved till the date of issuance of the demand notice to the corporate debtor. The operational creditor has denied its liability towards the claim raised by the corporate debtor. According to the operational creditor it has no obligation for the loss of goods or misplaced of the goods by the ship- per/corporate debtor and the operational creditor has no liability for mis- placed and lost material as claimed by the corporate debtor and the said purchase orders were never renewed by the operational creditor. In a case of this nature not bound to determine the merits of the dispute. The above said factors leads to a conclusion that corporate debtors claim for sett off on account of loss/non-delivery of goods entrusted is still not resolved. It has come out in evidence that operational creditor issued notice for reference of the dispute to the arbitration. The liability if any on account of admitted non-delivery of goods is denied by the operational creditor. The above said circumstances are sufficient to hold that there is a pre-exist- ing dispute in respect of the amount liable to be paid by the corporate debtor to the operational creditor. What is meant by existence of dispute to be established on the side of the corporate debtor in a case of this nature is dealt with in Mobilox Inno- vations P. Ltd. v. Kirusa Software P. Ltd. 2017 (9) TMI 1270 - SUPREME COURT OF INDIA . The corporate debtor issued reply notice to the demand notice issued under section 8(2) of the Code so as to bring to the notice of the opera- tional creditor the existence of a dispute, which is evidently found pre- existing before the issuance of the notice received by the corporate debtor. Thus the application is liable to be rejected under section 9(5)(ii)(d) of the Code. Accordingly rejected.

Summary

Issues Involved:
1. Completeness of the application under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Existence of a pre-existing dispute regarding the debt.
3. Validity of the authorization for initiating proceedings.
4. Claim of set-off by the corporate debtor.
5. Bar of limitation on the application.

Detailed Analysis:

1. Completeness of the Application under Section 9 of the Insolvency and Bankruptcy Code, 2016:
The operational creditor filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (I and B Code) to initiate the corporate insolvency resolution process (CIRP) against the corporate debtor for defaulting on a sum of ?5,34,852.70, including interest. The corporate debtor contended that the application was incomplete due to a lack of details regarding the date of default and valid authorization. The operational creditor countered this by stating that the application was complete and included the date of default and necessary authorization documents.

2. Existence of a Pre-existing Dispute Regarding the Debt:
The primary issue was whether there was a pre-existing dispute concerning the debt claimed by the operational creditor. The corporate debtor argued that there was no default as the amount claimed needed to be adjusted against dues receivable from the operational creditor. They also pointed out that some materials entrusted to the operational creditor were lost in transit, which should be deducted from the claimed amount. The operational creditor denied these allegations, stating that the invoices in question were not part of the current claim and that the corporate debtor had not pursued insurance claims for the lost materials. The tribunal found that there was a pre-existing dispute regarding the non-delivery of goods, which was evident from the correspondence and notices exchanged between the parties.

3. Validity of the Authorization for Initiating Proceedings:
The corporate debtor challenged the validity of the authorization, arguing that no valid authorization was produced to prove that the authorized representative was empowered to initiate proceedings. The operational creditor refuted this by providing a copy of the board resolution authorizing the signatory. The tribunal did not delve deeply into this issue, focusing instead on the existence of a pre-existing dispute.

4. Claim of Set-off by the Corporate Debtor:
The corporate debtor claimed a set-off for the loss of goods in transit, arguing that the operational creditor was responsible for the loss and that the amount should be adjusted against the claimed dues. The operational creditor rejected this claim, stating that they had no liability for the lost goods and that the corporate debtor had not pursued the insurance claims. The tribunal found that the corporate debtor's claim for set-off was unresolved and constituted a pre-existing dispute.

5. Bar of Limitation on the Application:
The corporate debtor argued that the application was barred by limitation, as the debt allegedly fell due on February 28, 2015, and the application was filed on March 5, 2018, more than three years later. The tribunal did not specifically address this argument, focusing instead on the existence of a pre-existing dispute.

Conclusion:
The tribunal concluded that there was a pre-existing dispute regarding the debt claimed by the operational creditor. Citing the Supreme Court's judgment in *Mobilox Innovations P. Ltd. v. Kirusa Software P. Ltd.*, the tribunal emphasized that the existence of a plausible contention requiring further investigation was sufficient to reject the application. Consequently, the application was rejected under Section 9(5)(ii)(d) of the I and B Code, 2016, with no order as to costs.