2021 (7) TMI 1128 - 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 22.01.2018 and the present application is filed on 24.01.2019. 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 - The present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w Section 9 of the code and is complete. There is a pre-existing dispute among the parties and the same is validated as per emails dated 23.04.2018, wherein the corporate debtor had raised dispute with regards the incomplete and delayed service, further as per email dated 07.06.2018, wherein the corporate debtor had also requested the applicant to complete the work at site - corporate debtor had also raised dispute in its reply to the demand notice of the applicant. Thus, a conclusion can be drawn that there is Preexistence dispute which was raised by the corporate debtor time and again much prior to the notice served under section 8 of I B Code. It is a fit case to reject the application under section 9 of the I B Code - the application is rejected.

Summary

Issues Involved:

1. Initiation of Corporate Insolvency Resolution Process (CIRP).
2. Existence of debt and default.
3. Pre-existing dispute between the parties.
4. Jurisdiction and maintainability of the application.
5. Compliance with procedural requirements.

Detailed Analysis:

1. Initiation of Corporate Insolvency Resolution Process (CIRP):

The application was filed under Sections 9, 13, 14, and 33 of the Insolvency and Bankruptcy Code, 2016 (the 'Code') by the Applicant, M/s Value Line Interiors Pvt. Ltd., to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, M/s Mayur Buildcon Private Limited. The Applicant was authorized by a board resolution dated 07.01.2019.

2. Existence of Debt and Default:

The Applicant claimed that it had completed the interior work as per the work order dated 30.06.2015 and raised bills totaling ?93,79,692/-, out of which ?79,63,360/- was paid by the Corporate Debtor. The remaining amount of ?14,16,332/- was claimed as due and payable. The Applicant sent a demand notice under Section 8 of the Code on 02.11.2018, which was duly served on the Corporate Debtor.

3. Pre-existing Dispute Between the Parties:

The Corporate Debtor raised disputes in its reply to the demand notice, stating that the work was incomplete and of poor quality, and hence no amount was due. The Corporate Debtor also argued that there was a pre-existing dispute regarding the quality and completion of work, which was communicated through emails dated 23.04.2018, 07.06.2018, and 24.09.2018. The Tribunal found that these disputes were genuine and not merely moonshine, referencing the Supreme Court's judgment in "Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited," which emphasized that the existence of a plausible contention requiring further investigation should lead to the rejection of the application.

4. Jurisdiction and Maintainability of the Application:

The Tribunal confirmed its jurisdiction to entertain the application as the registered office of the Corporate Debtor is situated in Delhi. The application was filed within the period of limitation, with the date of default being 22.01.2018 and the application filed on 24.01.2019.

5. Compliance with Procedural Requirements:

The Tribunal noted that the application was filed in the prescribed format under Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, and was complete in all respects.

Conclusion:

The Tribunal concluded that there was a pre-existing dispute between the parties, validated by the emails and communications exchanged prior to the issuance of the demand notice under Section 8 of the Code. Given the existence of such disputes, the Tribunal rejected the application under Section 9 of the Code, as the Corporate Debtor was found to be outside the purview of the Code due to the pre-existing disputes.

Order:

The application was rejected, and the order was to be communicated to both the Applicant and the Corporate Debtor, with a copy forwarded to the Insolvency and Bankruptcy Board of India (IBBI) for its records.