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2021 (8) TMI 427 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - adjustment of amount remitted by Corporate debtor or not - pre-existing dispute present or not - use the provisions of IBC as a recovery forum or not. Whether the Operational Creditor has not adjusted the amount of ₹ 2,60,594 remitted by the Corporate Debtor? - HELD THAT - The credit entries are matching with the bank account statement filed by the Corporate Debtor which is at Pg. 155 to 156 - Thus, there are no no ground to hold that ₹ 2,60,594 remitted by the Corporate Debtor has not been adjusted by the Operational Creditor. Ld. Adjudicating Authority has erroneously given a finding that the Operational Creditor has suppressed these two payments. Whether there is a pre-existing dispute? - HELD THAT - It is apparent that in reply to the notice Corporate Debtor has not raised any dispute. On the other hand, the Corporate Debtor assured the Operational Creditor that after verification of the invoices/bills, if there is any payment pending from their end, they will release the payment. Thereafter, Operational Creditor has sent an email dated 30.07.2019 and 25.09.2019 with a request that after lapse of considerable time no payment has been made to them in regard to the invoices/bills. Even the Corporate Debtor has not disputed the claim. Therefore, the Operational Creditor has filed the Application under Section 9 of the IBC on 04.11.2019. It is to be noted that after sending such reply, the Corporate Debtor has never clarified that which bills are not genuine - The Operational Creditor has filed the true copy of purchase orders along with the tax invoices (A4 at. Pg. 53-124) in reply affidavit filed by the Corporate Debtor before this Tribunal it is not challenged that these documents are not genuine. The Corporate Debtor has failed to prove that there exists any dispute between the parties in regard to the amount claimed by the Operational Creditor. Ld. Adjudicating Authority superficially examined the allegations and held that there is dispute between the parties. Such finding cannot be sustained. Whether the Operational Creditor has attempted to use the provisions of IBC as a recovery forum? - HELD THAT - Once the Operational Creditor has filed an Application, which is otherwise complete the Adjudicating Authority must reject the Application under Section 9 (5) (2) (d) of the IBC, if notice of dispute has been received by the Operational Creditor or there is record of dispute in the information utility. The Corporate Debtor has failed to prove that there exists any dispute between the parties in regard to the amount claimed by the Operational Creditor. The Corporate Debtor has not placed on record any material to infer that the Operational Creditor has filed the claim prematurely or for extraneous considerations or as a substitute for debt enforcement procedures - The Operational Creditor has claimed ₹ 12,75,316/- which is supported by the ledger entries, purchase orders, invoices, exchange of emails and demand notice. The Corporate Debtor has not filed any document in rebuttal. The Ld. Adjudicating Authority is not convincing in stating that the Operational Creditor has attempted to use this forum as a recovery forum, and that also in respect of a disputed debt . Ld. Adjudicating Authority also held that no case has been made out that the Corporate Debtor has become insolvent and has lost its substratum such that it is unable to pay its debts or run its business - Reliance placed in Judgment of this Appellate Tribunal in the case of MONOTRONE LEASING PRIVATE LIMITED VERSUS PM COLD STORAGE PRIVATE LIMITED 2020 (8) TMI 386 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI where coordinate Bench of this Tribunal held that We are bound to emphasize that a presumption cannot be drawn merely on the basis that a company, being solvent, cannot commit any default. As observed in financial and economic parlance, the inability to pay-off debts and committing default are two different aspects which required to be adjudged on equally different parameters. Inability to pay debt has no relevance for admitting or rejecting an Application for initiation of CIRP under the IBC - Thus, the finding of the Adjudicating Authority cannot be agreed upon. The Ld. Adjudicating Authority has wrongly rejected the claim on unfounded grounds. From the record, it is found that the Corporate Debtor has defaulted to pay more than one lakh and in absence of pre-existing dispute and the record being complete, thus, the Application under Section 9 of the IBC preferred by the Operational Creditor was fit to be admitted. The case remitted to the Adjudicating Authority for admitting the Application under Section 9 of the IBC, after notice to the Corporate Debtor to enable the Corporate Debtor to settle the matter prior to the admission - appeal allowed.
Issues Involved:
1. Whether the Operational Creditor has not adjusted the amount of ?2,60,594 remitted by the Corporate Debtor? 2. Whether there is a pre-existing dispute? 3. Whether the Operational Creditor has attempted to use the provisions of IBC as a recovery forum? Issue-wise Detailed Analysis: Issue No. (i): Whether the Operational Creditor has not adjusted the amount of ?2,60,594 remitted by the Corporate Debtor? The Operational Creditor presented the ledger account maintained for the Corporate Debtor from 01.04.2018 to 31.03.2020, which showed two credit entries: ?1,37,296 on 02.06.2018 and ?1,23,298 on 13.08.2018. These entries matched the bank account statements provided by the Corporate Debtor. Thus, it was concluded that the Operational Creditor did adjust the amount of ?2,60,594 remitted by the Corporate Debtor. The Adjudicating Authority's finding that the Operational Creditor suppressed these payments was erroneous. Issue No. (ii): Whether there is a pre-existing dispute? The Corporate Debtor received the demand notice under Section 8(1) of the IBC on 28.06.2019 and replied on 15.07.2019, beyond the stipulated 10-day period. The reply did not dispute the debt amount or the quality of goods but mentioned verifying the authenticity of some bills. The Corporate Debtor assured payment for genuine bills after verification. However, no specific bills were identified as inauthentic in subsequent communications or objections filed before the Adjudicating Authority. The Hon'ble Supreme Court's ruling in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. emphasized that the existence of a dispute must be plausible and not merely a feeble legal argument. The Corporate Debtor failed to prove any pre-existing dispute, and the Adjudicating Authority's finding of a dispute was superficial and unsustainable. Issue No. (iii): Whether the Operational Creditor has attempted to use the provisions of IBC as a recovery forum? The Hon'ble Supreme Court in K. Kishan vs. Vijay Nirman Company Pvt. Ltd. highlighted that the IBC should not be used as a substitute for debt enforcement procedures or for extraneous considerations. The Operational Creditor's claim of ?12,75,316 was supported by ledger entries, purchase orders, invoices, emails, and a demand notice. The Corporate Debtor did not provide any material to suggest that the claim was premature or for extraneous considerations. The Adjudicating Authority's conclusion that the Operational Creditor used the IBC as a recovery forum was incorrect. Additionally, the Adjudicating Authority's observation that no case was made out of the Corporate Debtor's insolvency was countered by the Appellate Tribunal's emphasis that inability to pay debts and committing default are distinct aspects. The Tribunal found that the Corporate Debtor defaulted on paying more than ?1 lakh, and in the absence of a pre-existing dispute, the application under Section 9 of the IBC should have been admitted. Conclusion: The Appellate Tribunal set aside the impugned order dated 19.06.2020 and remitted the case to the Adjudicating Authority for admitting the application under Section 9 of the IBC, after providing notice to the Corporate Debtor to enable settlement prior to admission. The appeal was allowed with the above observations and directions, with no costs.
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