2021 (6) TMI 50 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - HELD THAT - There has been no admission of operational debt by the respondent. In fact, there has been a dispute regarding the quality of the goods being supplied by the applicant and in furtherance to which the overseas client raised concern about the same and said that they will not be liable to make repyment as the goods supplied are not of any use. There was existence of dispute much prior to the issuance of notice under Section 8 of the Code. Respondent has raised the dispute with sufficient particulars. The amount of claim raised by the applicant clearly falls within the ambit of disputed claim. The claim of dispute suggests the need of elaborate investigation. In the facts it is reiterated that existence of genuine dispute in the present case cannot be ruled out - As per Section 9 (5) (ii) (d) of the Code provides that adjudicating authority shall reject the application if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. This petition fails and the same is rejected.

Summary

Issues:
Application under section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process.

Analysis:
The applicant, an operational creditor, filed a petition seeking initiation of Corporate Insolvency Resolution Process against the respondent company, claiming unpaid dues. The applicant alleged that goods were supplied to the respondent in early 2019, leading to outstanding payments of over ?5 crore. The respondent, in its defense, contended that the goods supplied were of poor quality and defective, causing a dispute since March 2019. The respondent further claimed that the applicant threatened dire consequences instead of addressing the quality issues raised by the overseas client. The respondent also highlighted clauses in the Sale of Goods Agreement placing responsibility on the applicant for the quality of goods supplied. Additionally, the respondent mentioned a criminal complaint filed by the applicant against its director, which was later found to be false and baseless after investigation by the cyber police station.

The Tribunal considered the definition of "dispute" as per the Insolvency and Bankruptcy Code, emphasizing the need for a genuine dispute to exist for rejecting an insolvency application. The respondent had raised a pre-existing dispute regarding the quality of goods supplied, supported by documentary evidence such as letters and debit notes from overseas clients. The Tribunal noted that the respondent's dispute predates the demand notice issued by the applicant, indicating a genuine disagreement over the quality of goods and payment obligations. As per Section 9(5)(ii)(d) of the Code, the adjudicating authority must reject the application if there is a notice of dispute from the operational creditor or a record of dispute in the information utility. In this case, the existence of a legitimate dispute before the notice under Section 8 of the Code was evident, leading to the rejection of the insolvency petition.

The Tribunal concluded that the application failed due to the presence of a pre-existing dispute between the parties, as evidenced by the correspondence and actions taken by the respondent regarding the quality issues with the supplied goods. The rejection of the application did not imply a judgment on the underlying controversy, and the right of the applicant to pursue remedies through other forums was preserved. The order was to be served to the concerned parties for compliance and information.