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2021 (11) TMI 179 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT - A perusal of the typed set of documents filed by the Corporate Debtor would reveal the fact that there are series of e-mails which have been exchanged between the parties even before issuance of the Demand Notice. A perusal of the aforesaid emails as exchanged between the parties would show that the Corporate Debtor had raised certain disputes in relation to the project executed by the Operational Creditor and that this Court, unlike a Civil Court cannot go into the aspect of whether the said defects as raised by the Corporate Debtor were rectified and completed by the Operational Creditor and also cannot adjudicate upon the said issue - the Corporate Debtor has clearly pointed out the dispute which existed between the parties, much prior to the issuance of the Demand Notice. Further, without producing precise documents by the Operational Creditor, substantiating that the 'debt' has become due and payable by the Corporate Debtor, this Authority would certainly not be able to ascertain the 'default' on the part of the Corporate Debtor. It is also seen that the Corporate Debtor has raised a 'dispute' in relation to the completion of the work on the basis on which the work has been progressed in relation to the Operational Creditor and also it is seen that the Operational Creditor was unable to complete the project within the stipulated time - it is also significant to point out here that it is not for the first time that the Corporate Debtor has raised the dispute in the reply to the Demand Notice. Also, it emerges from the series of e-mails exchanged between the parties show that there is a dispute between the parties in relation to the work done by the Operational Creditor. The Hon'ble Supreme Court of India in the matter of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED 2017 (9) TMI 1270 - SUPREME COURT has clearly laid down that the test for determination for the Adjudicating Authority is to see at the stage of Admitting/rejecting the Application is whether there is a plausible contention which requires further investigation and that the 'Dispute' is not a patently feeble legal argument or an assertion of fact unsupported by evidence - it is not required for this Adjudicating Authority to explore the gravity and intensity of the dispute which exists between the parties and is only required to see that whether the dispute as raised by the Respondent requires further investigation and that the dispute is not patently feeble legal argument or an assertion of fact unsupported by evidence. There exists a dispute between the parties and the said dispute required further investigation and the alleged debt and default, can be established only after detail trail and not in a summary proceeding - Application dismissed.
Issues involved:
1. Maintainability of the Application under Section 9 of the Insolvency and Bankruptcy Code, 2016. 2. Existence of a pre-existing dispute between the parties. 3. Period of limitation for filing the Application. 4. Admissibility of evidence and documents submitted by both parties. Issue-wise Detailed Analysis: 1. Maintainability of the Application under Section 9 of the Insolvency and Bankruptcy Code, 2016: The Operational Creditor, M/s. URC Construction Private Limited, filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, against the Corporate Debtor, M/s. S.P. Mani and Mohan Dairy (India) Private Limited, seeking to initiate the Corporate Insolvency Resolution Process (CIRP). The Operational Creditor claimed an amount of ?3,07,81,310/- as due and payable by the Corporate Debtor. The Corporate Debtor contested the maintainability of the application, citing a pre-existing dispute. 2. Existence of a pre-existing dispute between the parties: The Corporate Debtor argued that there was a pre-existing dispute regarding the work performed by the Operational Creditor. The Corporate Debtor submitted various emails dated 22.11.2014, 08.04.2015, 09.04.2015, 10.10.2015, 20.04.2016, 21.09.2019, and 31.01.2020, highlighting issues such as slow progress and negligence in speeding up the work. The Operational Creditor, however, contended that these disputes were raised only after the Demand Notice was issued and were merely an afterthought to avoid liability. The Tribunal noted that the emails exchanged between the parties before the issuance of the Demand Notice indicated that disputes existed regarding the project execution. 3. Period of limitation for filing the Application: The Operational Creditor argued that the last payment of ?8,82,000/- was received on 25.06.2018, and the application was filed on 22.09.2020, which is within the three-year limitation period as per Section 19 of the Limitation Act, 1963. The Tribunal acknowledged that the application was filed within the statutory limitation period. 4. Admissibility of evidence and documents submitted by both parties: The Tribunal examined the documents submitted by both parties, including the Deed of Agreement, running account bills, ledger statements, and emails. The Tribunal emphasized that proceedings under Section 7, 9, and 10 of IBC, 2016, are summary in nature and do not permit detailed examination of evidence. The Tribunal found that the Corporate Debtor had raised disputes regarding the completion and quality of work, which required further investigation and could not be resolved in a summary proceeding. Conclusion: The Tribunal concluded that there existed a dispute between the parties that required further investigation. The Tribunal referred to the Hon'ble Supreme Court's judgment in M/s. 'Mobilox Innovations Pvt. Ltd. Vs. 'Kirusa Software Pvt. Ltd.' (2018) 1 SCC 353, which established that the Adjudicating Authority must determine whether there is a plausible contention requiring further investigation and that the dispute is not a patently feeble legal argument or an assertion unsupported by evidence. Based on this, the Tribunal dismissed the application filed by the Operational Creditor, stating that the alleged debt and default could only be established after a detailed trial and not in a summary proceeding. The application was dismissed with no costs.
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