9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (12) TMI 420 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT - The provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code. The Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited 2017 (9) TMI 1270 - SUPREME COURT , has inter alia, held that I B Code, 2016 is not intended to be substitute to a recovery forum. The operational creditor cannot use the Code prematurely or for extraneous considerations or reasons as a substitute for debt enforcement procedures. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked. The Respondent has throughout denied/disputed the claims of the Petitioner, much before the demand notice sent on 02.01.2020. The Respondent contends that whatever demands were raised by the Petitioner for the services rendered by it, were either paid or adjusted long back by the Respondent against payments due from the Petitioner, as also borne out from the various emails exchanged between the two sides. In its mail of 10.04.2010 the Petitioner had accepted that all the demands had been paid. Subsequent dues were also cleared. No case has also been made out that the Respondent is an insolvent entity that has lost its ability to run its business, generate revenue or repay its debts. This is not a case where the insolvency of the Corporate Debtor needs to be resolved by initiating CIRP, which is the objective of the Code in inserting the provisions contained in sections 7 and 9. Recourse to the Code does not entail or intend pushing viable units into insolvency. There is no clear and undisputed debt, there is a pre-existing dispute, that this Tribunal cannot be used as a recovery forum, and that no case has been made out to our satisfaction that the Respondent is insolvent and is unable to pay its debts, the petition is liable to be dismissed - Petition dismissed.
Issues Involved:
1. Limitation and delay in filing the petition. 2. Completeness and accuracy of the demand notice. 3. Pre-existing disputes between the parties. 4. Use of the Insolvency and Bankruptcy Code (IBC) for debt recovery. 5. Financial status and viability of the corporate debtor. Detailed Analysis: 1. Limitation and Delay in Filing the Petition: The petitioner's claim arose during 2009-2014, while the petition was filed on 21.02.2020. The tribunal noted that the cause of action for each bill arose 15 days after the issuance of the bill, making the claims time-barred. The IBC was enacted in 2016, and it was not intended to revive old demands barred by limitation. The tribunal cited the Hyderabad Bench's decision in Om Logistics Limited Vs La Nourriture India Specialities Ltd., emphasizing that defaults occurring more than three years prior to the enactment of the Code are time-barred. 2. Completeness and Accuracy of the Demand Notice: The tribunal found the demand notice dated 02.01.2020 defective. The notice contained bills with different numbers and amounts, and some bills pertained to different stations. This discrepancy rendered the demand notice invalid, and the petition was dismissed on this ground alone. 3. Pre-existing Disputes Between the Parties: The tribunal emphasized that the IBC cannot be used for debt recovery but to initiate the Corporate Insolvency Resolution Process (CIRP) for justified reasons. The Supreme Court in Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited and Transmission Corporation of A.P. Ltd. Vs. Equipment Conductors and Cables Ltd. held that the existence of an undisputed debt is essential for initiating CIRP. The tribunal found that the respondent had consistently denied the petitioner's claims, and there was a pre-existing dispute. The tribunal examined emails and payment vouchers, concluding that the dispute was genuine and not a mere ruse to avoid admission of the petition. 4. Use of the IBC for Debt Recovery: The tribunal reiterated that the IBC is not a substitute for debt enforcement procedures and cannot be used to recover outstanding amounts. The tribunal found that the petitioner was attempting to use the IBC as a recovery forum, which is against the intent and purpose of the Code. 5. Financial Status and Viability of the Corporate Debtor: The tribunal noted that the respondent is a solvent and profitable entity with substantial assets and income. The respondent's financial statements showed significant profits and a large workforce, indicating its ability to pay debts. The tribunal concluded that the petitioner's case did not demonstrate the respondent's insolvency or inability to pay debts. Conclusion: The petition was dismissed due to the time-barred nature of the claims, defective demand notice, pre-existing disputes, misuse of the IBC for debt recovery, and the respondent's financial viability. The tribunal emphasized that the decision does not prevent the petitioner from pursuing pending demands through other means such as mutual settlement, arbitration, or other legal forums.
|
