2021 (7) TMI 563 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT - The date of default is 29.12.2015 which is the date of the last invoice issued which was unpaid, and the present application is filed on 24.09.2018. Hence the application is not time barred and filed within the period of limitation - the registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. Existence of dispute before the receipt of demand notice or invoice - HELD THAT - 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 - in the e-mail dated 07.08.2014, 27.03.2015, 01.02.2016, 25.03.2016 and 08.04.2016 stating the deficiency in the goods (PP sacks) supplied and that the foreign customer had rejected the entire shipment of raw material supplied by the Operational Creditor, causing a loss of USD 60030 to the Corporate Debtor establishes that the Operational Creditor was aware of the dispute prior to issuance of Demand Notice dated 01.11.2017. A pre-existing dispute does not entitle the Operational Creditor to seek Insolvency Resolution of the Corporate Debtor. This Bench is of the view that the prayer for initiating Corporate Insolvency Resolution process against the Corporate Debtor is not sustainable - Application disposed off.

Summary

Issues:
Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency process against a Corporate Debtor based on unpaid invoices. Existence of pre-existing dispute between Operational Creditor and Corporate Debtor.

Analysis:
1. The Applicant, an Operational Creditor, filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 seeking initiation of Corporate Insolvency Resolution Process against the Corporate Debtor due to unpaid invoices amounting to ?14,18,462. The Applicant had issued a demand notice as per the Code's provisions, which was delivered but returned with a remark. The Corporate Debtor did not reply to the demand notice, and the Applicant complied with the mandatory provisions of the Code.

2. The Corporate Debtor raised a defense stating a pre-existing dispute regarding sub-standard products supplied by the Operational Creditor during 2014-2015. The Corporate Debtor claimed that the goods did not meet specifications, leading to wastage and losses. The Corporate Debtor communicated these issues via emails and letters, highlighting the deficiencies in the goods supplied. The Corporate Debtor's customer also rejected a shipment, causing a substantial loss to the Corporate Debtor.

3. The Corporate Debtor argued that the pre-existing dispute existed before the demand notice was issued, as per the Supreme Court's interpretation in "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited." The Court emphasized that for an application under Section 9 to be valid, a dispute must exist before the receipt of the demand notice or invoice. The Corporate Debtor demonstrated that the Operational Creditor was aware of the dispute prior to issuing the demand notice, rendering the application unsustainable.

4. Considering the evidence presented, the Tribunal concluded that a pre-existing dispute between the parties existed before the demand notice was issued. As per the legal interpretation and the facts presented, the Tribunal held that the Operational Creditor's prayer for initiating the Corporate Insolvency Resolution process against the Corporate Debtor was not sustainable. Consequently, the application was rejected and disposed of based on the above findings.