2020 (10) TMI 324 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Whether the Corporate Debtor has raised any dispute as against the payment of the sum as claimed by the Operational Creditor in the present petition before issuance of the Demand Notice? - HELD THAT - A perusal of the typed set of documents filed by the Corporate Debtor would reveal the fact that there are series of e-mails which have been exchanged between the parties even before issuance of the Demand Notice. On 17.12.2018, the Operational Creditor has sent a mail to the Corporate Debtor to clear the outstanding dues of ₹ 14,58,176/- for which the Corporate Debtor has sent a reply e-mail - It is clear that the fact that there exists a 'dispute' between the parties even before the issuance of the Demand notice. Further, it may also be noted that the proceedings before this Tribunal is summary in nature and this Tribunal, unlike the Civil Court cannot indulge in the luxury of taking evidence, oral or otherwise as to its existence. The Hon'ble Supreme Court in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited 2017 (9) TMI 1270 - SUPREME COURT held that the 'existence of dispute' and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the Demand Notice or Invoice as the case may be. As to the facts of the case, it is seen that there exists dispute between the parties before the issuance of the Demand Notice itself and the contentions raised by Corporate Debtor is a plausible contention which requires further investigation and in the said circumstances, the Application is constrained to be dismissed - application dismissed.

Summary

Issues:
- Application under Section 9 of the Insolvency & Bankruptcy Code 2016 to initiate Corporate Insolvency Resolution Process.
- Amendment of cause title in the application.
- Details of the Corporate Debtor.
- Transaction details leading to debt and default.
- Documents substantiating the claim.
- Dispute regarding payment between Operational Creditor and Corporate Debtor.
- Existence of a dispute before the issuance of the Demand Notice.

Analysis:
1. The judgment dealt with an application filed under Section 9 of the Insolvency & Bankruptcy Code 2016 to initiate Corporate Insolvency Resolution Process. The application sought to resolve a dispute between an Operational Creditor and a Corporate Debtor. The Operational Creditor had supplied materials to the Corporate Debtor, leading to a claimed debt of ?16,04,952.85, including interest.

2. An amendment application was filed to change the cause title in the original application. The amendment was allowed as it was a procedural matter without impacting the substance of the case.

3. The particulars of the Corporate Debtor, including its date of incorporation, share capital, and registered office, were presented in the application. The Corporate Debtor had not proposed an Interim Resolution Professional, leaving the appointment to the Tribunal.

4. Details of the transaction between the Operational Creditor and the Corporate Debtor were outlined, including the supply of materials and outstanding payments. The Operational Creditor had issued a Demand Notice under Section 8 of the IBC, which the Corporate Debtor did not respond to.

5. Both parties presented their arguments regarding a dispute over payment. The Corporate Debtor claimed that the Operational Creditor supplied expired materials, leading to losses and termination of supplies. The Operational Creditor countered, stating that the Corporate Debtor did not dispute the receipt of materials or make payments as per the Purchase Order.

6. The Tribunal analyzed the communications between the parties before the issuance of the Demand Notice. It found evidence of a pre-existing dispute regarding the quality of materials supplied, payments, and termination of supplies. Citing legal precedents, the Tribunal concluded that the dispute existed before the Demand Notice and dismissed the application, emphasizing the need for further investigation into the dispute.

7. The judgment highlighted the importance of a pre-existing dispute before the issuance of a Demand Notice under the IBC. It emphasized the need for a plausible contention requiring further investigation, leading to the dismissal of the application due to the existence of a dispute between the parties.