2021 (6) TMI 22 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors or not - existence of debt and dispute or not - HELD THAT - It is clear that the dispute must exist before the receipt of demand notice - Be that as it may, on appraisal of the arguments advanced by the Ld. Counsels, it emerges that there were disputes existing prior to the issuance of the Demand Notice. Since there is a preexisting dispute between the parties, there are no option but to reject the prayer of the Operational Creditor to initiate proceedings under Section 9 of IBC, 2016 - application dismissed.

Summary

Issues:
- Application for corporate insolvency resolution process under Section 9 of the Insolvency and Bankruptcy Code 2016 based on alleged default in clearing a debt.
- Existence of a pre-existing dispute between the parties regarding the invoices mentioned in the application.
- Evaluation of the communication between the operational creditor and the corporate debtor to determine the existence of a dispute.
- Legal interpretation of the term "dispute" in the context of operational creditors under the Insolvency and Bankruptcy Code.

Analysis:
1. The application filed sought to initiate the corporate insolvency resolution process against the respondent for an alleged default in clearing a debt of ?31,60,990 towards services provided. The operational creditor detailed the transactions leading to the application, including the issuance of invoices and subsequent actions taken to recover the outstanding amount.

2. The corporate debtor, in its reply, disputed the amount claimed by the operational creditor, alleging a pre-existing dispute between the parties regarding certain invoices mentioned in the application. The corporate debtor claimed that the invoices were issued to a different firm and accused the operational creditor of forging documents.

3. The communication between the operational creditor and the corporate debtor was crucial in determining the existence of a dispute. Emails exchanged between the parties highlighted discrepancies in the invoices issued and acknowledged mistakes made in the documentation. The corporate debtor consistently maintained that the invoices in question were not related to them.

4. The Tribunal considered the legal interpretation of the term "dispute" as outlined in the Insolvency and Bankruptcy Code. Referring to a Supreme Court judgment, the Tribunal emphasized that the existence of a dispute must precede the receipt of a demand notice. In this case, it was established that disputes existed before the issuance of the demand notice.

5. Based on the pre-existing disputes between the parties, the Tribunal rejected the operational creditor's prayer to initiate proceedings under Section 9 of the Insolvency and Bankruptcy Code. The application was dismissed, emphasizing the importance of resolving disputes before resorting to insolvency proceedings to ensure fair and just outcomes in such matters.