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2021 (4) TMI 773 - AT - Insolvency and BankruptcyMaintainability of Appeal - locus standi of the Appellant for filing the appeal - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - service of demand notice - HELD THAT - In view of the provision under Section 61(1) of IBC that any person aggrieved by the order of the Adjudicating Authority may prefer an appeal, the Appellant has not been able to show as to how she is aggrieved by the Impugned Order and is an interested party for preferring this appeal. Moreover, since the authorised representative of the Corporate Debtor in the matter that was filed before the Adjudicating Authority has chosen not to file any appeal against the Impugned Order it was necessary for the Appellant to establish her locus standi for filing this appeal. The Appellant is unable to establish how she is aggrieved by the Impugned Order, and, therefore, her locus standi in filing this appeal. The appeal is thus not maintainable as it doesn t satisfy the criterion for preferring an appeal, as set out in Section 61(1) of the IBC. Appeal dismissed.
Issues:
1. Locus standi of the appellant to prefer the appeal. 2. Consideration of pre-existing disputes by the Adjudicating Authority. 3. Allegations of delay and loss by the Appellant against the Operational Creditor. 4. Respondent's claim regarding lack of pre-existing dispute and responsibility of the Operational Creditor. 5. Admittance of the application under Section 9 of the IBC by the Adjudicating Authority. Locus Standi of the Appellant: The appellant, claiming to be a shareholder of the Corporate Debtor, filed an appeal under Section 61 of the IBC. However, the extent of shareholding was inconsistent, and no evidence of shareholding was provided. The Respondent raised concerns about the appellant's authority to represent the Corporate Debtor. The Tribunal noted that the appellant failed to establish how she was aggrieved by the Impugned Order, rendering the appeal non-maintainable under Section 61(1) of the IBC. As the authorised representative of the Corporate Debtor did not appeal, the appellant's locus standi was crucial, which she failed to prove. Consideration of Pre-existing Disputes: The Appellant contended that the Adjudicating Authority overlooked pre-existing disputes between the Corporate Debtor and the Operational Creditor. Disputes arose regarding freight forwarding services, delays, and loss of goods. The Operational Creditor claimed some invoices were paid, while others were pending. The Adjudicating Authority ordered the initiation of Corporate Insolvency Resolution Process, disregarding these disputes. The Appellant argued that the Authority failed to consider these disputes while admitting the application under Section 9 of the IBC. Allegations of Delay and Loss: The Appellant alleged delays and loss of goods by the Operational Creditor, leading to a loss for the Corporate Debtor. Correspondences and complaints highlighted delays and missing cargo. The Appellant emphasized that the Adjudicating Authority did not consider these disputes as pre-existing while deciding on the Operational Creditor's application. The Operational Creditor's responsibility for delays and losses was a key contention raised by the Appellant. Respondent's Claim and Responsibility of Operational Creditor: The Respondent argued against the existence of pre-existing disputes, claiming the Appellant's evidence was an afterthought post the Section 8 notice. They asserted that the Operational Creditor, as a freight forwarder, was not liable for delays or loss of goods. The Respondent maintained that the dispute did not relate to the service's performance under the Operational Creditor's control. They contended that the operational debt was due and payable, defending the Adjudicating Authority's decision to initiate the Corporate Insolvency Resolution Process. Admittance of Application under Section 9 of the IBC: The Operational Creditor filed an application under Section 9 of the IBC, which was admitted by the Adjudicating Authority, leading to the initiation of the Corporate Insolvency Resolution Process. Both parties presented arguments, submissions, and evidence during the appeal hearing. The Tribunal reviewed all documents, submissions, and the Impugned Order, considering the arguments made by both parties. Ultimately, the Tribunal found no grounds to interfere with the Impugned Order and dismissed the appeal without costs. This detailed analysis covers the key issues of the judgment, including the locus standi of the appellant, consideration of pre-existing disputes, allegations of delay and loss, respondent's claims, and the admittance of the application under Section 9 of the IBC.
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