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2020 (8) TMI 394 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - unpaid Operational Debt - pre-existing debt or not - Adjudicating Authority has rejected the application mainly on the ground that the Applicant has failed to prove the Operational Debt and its default and further on the ground of pre-existing dispute - HELD THAT - Admittedly demand notice in Form 3, under Rule 5 of the Adjudicating Authorities Rules has been issued on 03 June 2019. In reply to the demand notice dated 14 June 2019 the corporate Debtor has acknowledged the receipt of the demand notice on 06 June 2019. Thus, reply to the demand notice is given within the statutory period of ten days. On perusal of the documents submitted by the parties, it is evident from the Letter dated 08.01.2019 which is signed by both the parties, that the Applicant had failed to complete the Tranche II Conditions Precedent as a result of which the Corporate Debtor had exercised its right under the BTA and set-off and adjusted the Tranche III payment of ₹ 6,00,00,000/-. It is further evident from the Letter of Corporate Debtor dated 06.03.2019, wherein the Corporate Debtor had demanded a refund from the Applicant of ₹ 15.01 Crores along with interest for violation of terms of Letter dated 08.01.2019 by the Applicant, in the same Letter the Corporate Debtor had also disputed that the Applicant is in non-compliance of the BTA and therefore is not liable to receive Tranche II and Tranche III payment under the BTA. These disputes by the Corporate Debtor are raised before the receipt of demand notices - there is a plausible contention in the defence raised by the corporate debtor which requires further investigation and that the alleged dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. The Ld. Adjudicating Authority has rightly dismissed the application filed under Section 9 of IBC - Appeal dismissed.
Issues Involved:
1. Rejection of Insolvency Application under Section 9 of the Insolvency and Bankruptcy Code, 2016. 2. Pre-existing dispute between the parties. 3. Existence and classification of operational debt. 4. Compliance with the Business Transfer Agreement (BTA). 5. Adjudicating Authority's jurisdiction and summary jurisdiction under IBC. Issue-wise Detailed Analysis: 1. Rejection of Insolvency Application under Section 9 of the Insolvency and Bankruptcy Code, 2016: The appeal arises from the order dated 15 November 2019 by the National Company Law Tribunal, Mumbai Bench, which rejected the insolvency application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (I&B Code). The application was dismissed primarily due to the pre-existing dispute between the parties. 2. Pre-existing dispute between the parties: The Operational Creditor (Appellant) argued that the Corporate Debtor (Respondent) failed to pay the balance consideration of ?58 Crores out of the total ?123 Crores for the slump sale of a Silica Plant. However, the Corporate Debtor contended that there was a pre-existing dispute regarding the payment and conditions precedent in the BTA. The Corporate Debtor had communicated disputes through various letters and emails before the issuance of the demand notice, indicating disagreements over the completion of conditions precedent and payment adjustments. 3. Existence and classification of operational debt: The Operational Creditor claimed that the unpaid amount constituted operational debt. However, the Corporate Debtor argued that the debt was not operational and that the Appellant was not an operational creditor as defined under the IBC. The Corporate Debtor had made partial payments and adjusted the remaining amounts against improvement costs due to the Appellant's non-compliance with the conditions precedent. 4. Compliance with the Business Transfer Agreement (BTA): The BTA dated 07 April 2018 outlined the terms for the transfer of the Silica Plant. The Appellant contended that the Corporate Debtor acknowledged the debt in its Annual Report and failed to pay the balance consideration. Conversely, the Corporate Debtor argued that the Appellant did not fulfill the conditions precedent, leading to adjustments in the payment tranches. The Corporate Debtor also highlighted mutual agreements and letters that documented these adjustments and disputes. 5. Adjudicating Authority's jurisdiction and summary jurisdiction under IBC: The Adjudicating Authority, while exercising its summary jurisdiction under IBC, is not expected to decide on disputed questions of fact. The Authority must ensure the existence of an operational debt exceeding ?1 lakh, its due and payable status, and the absence of pre-existing disputes before admitting or rejecting a petition under Section 9. The Authority found that the disputes raised by the Corporate Debtor were genuine and required further investigation, leading to the rejection of the application. Conclusion: The Tribunal upheld the Adjudicating Authority's decision, concluding that the application under Section 9 of IBC was rightly dismissed due to the pre-existing dispute and the lack of a clear operational debt. The appeal was dismissed, affirming that the disputes raised were not patently feeble and required further examination.
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