2020 (4) TMI 8 - AT - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - There is a disputed question the of fact relating to payment of debts and the purchase order was issued by joint venture dated July 6, 2013 relied on by the appellant was issued by the joint venture, i. e., Prasad-Shreehari (joint venture) which is not a party to this appeal or was not impleaded as the co-applicant in the application filed under section 9 of the I and B Code , we are not inclined to grant any relief to the appellant. Appeal dismissed.

Summary

Issues:
1. Application under section 9 of the Insolvency and Bankruptcy Code, 2016 for corporate insolvency resolution process.
2. Dispute over debt and default in repayment.
3. Interpretation of purchase order terms and completion of project.
4. Liability of the corporate debtor for outstanding amount.
5. Application filed for realization of amount or corporate insolvency resolution process.
6. Disputed facts regarding debts and purchase order issuance.

Analysis:

1. The appellant, an operational creditor, filed an application under section 9 of the Insolvency and Bankruptcy Code, 2016 against the corporate debtor for defaulting on repayment of a specific sum. The National Company Law Tribunal rejected the application, citing the need for the operational creditor to prove the debt due and default committed by the corporate debtor. The tribunal highlighted the completion of project terms, liability for retention money, and the unforeseen suspension order by the Government of Maharashtra as factors affecting the default claim.

2. The appellant argued that the Adjudicating Authority should have admitted the application as there was a debt and default, supported by the completion of Form 5 with the application. The appellant claimed an outstanding balance after receiving partial payments from the respondent, emphasizing the liability established for the due amount as per the Insolvency and Bankruptcy Code.

3. The respondent, the corporate debtor, contended that the payment terms were based on the agreed contract, including advance payments and stage-wise payments linked to project milestones. The respondent claimed to have made payments according to the invoices raised by the appellant, disputing any unpaid amounts due to incomplete performance by the operational creditor.

4. The tribunal noted that the application seemed to be filed primarily for realizing the outstanding amount rather than for corporate insolvency resolution. It also observed discrepancies in the parties involved, with the joint venture being the contracting party but the corporate debtor being impleaded, leading to a disputed question of fact regarding debts and purchase order issuance.

5. Due to the disputed facts and the involvement of the joint venture in the purchase order, which was not a party to the appeal, the tribunal dismissed the appeal, emphasizing the lack of relief granted to the appellant in light of the unresolved issues regarding debts, default, and party impleadment.

In conclusion, the judgment highlighted the importance of establishing clear debt and default in insolvency cases, the significance of contract terms and project completion in determining liabilities, and the necessity of accurate party representation in legal proceedings to avoid disputes over debt claims.