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2022 (1) TMI 1134 - 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 - Perusal of Application as well as the documents enclosed, the Email Communications between the Operational Creditor and the Corporate Debtor clearly establishes the fact that there was pre-existing dispute between both the parties. The fact that the Corporate Debtor vide its emails dated 25.03.2017 and 25.07.2017 communicated to the Operational Creditor regarding issues in services provided in regard to non-operating and defective cleaning machines and issues regarding mail services. Vide email communication dated 25.07.2017 the Corporate Debtor raised the issue regarding salary of House Keeping Boys. These email communications clearly establish the fact that there was a pre-existence of dispute between both the parties prior to the issuance of Demand Notice dated 08.04.2019. The dispute must exist before the receipt of demand notice. On examination of the documents submitted and the arguments advanced by the Ld. Counsels, it emerges that there were disputes existing prior to the issuance of the Demand Notice. Since there was a pre-existing dispute between the parties, there are no option but to reject the prayer of the Operational Creditor to initiate proceedings under Section 9 of IBC, 2016 - application dismissed.
Issues Involved:
1. Existence of a debt owed by the Corporate Debtor to the Operational Creditor. 2. Pre-existing dispute between the parties. 3. Allegations of forgery and fraud. 4. Validity of the statutory Demand Notice under Section 8 of IBC, 2016. 5. Adjustment of dues against the allotment of office space/showroom. Detailed Analysis: 1. Existence of a Debt Owed by the Corporate Debtor to the Operational Creditor: The Operational Creditor, M/s. Bulwark Facilities Management Private Limited, filed an application to initiate the Corporate Insolvency Resolution Process (CIRP) under Section 9 of the Insolvency and Bankruptcy Code 2016 against the Corporate Debtor, M/s. Genesis Facilities Management Private Limited, for an alleged default in clearing a debt of ?33,85,622/-. The debt arose from a Memorandum of Understanding (MoU) dated 24.07.2015, where the Operational Creditor provided goods and services, including facility management and housekeeping, to the Corporate Debtor. Invoices totaling ?70,42,292/- were raised, and part payments amounting to ?45,24,555/- were made by the Corporate Debtor. 2. Pre-Existing Dispute Between the Parties: The Corporate Debtor contended that there was a pre-existing dispute regarding the quality of services provided by the Operational Creditor. Emails dated 25.03.2017 and 25.07.2017 from the Corporate Debtor to the Operational Creditor highlighted issues such as non-operating and defective cleaning machines and salary issues of housekeeping staff. These communications established the existence of a dispute before the issuance of the statutory Demand Notice dated 08.04.2019. 3. Allegations of Forgery and Fraud: The Operational Creditor alleged that the Corporate Debtor forged signatures and stamps to fabricate documents related to a purported sale-purchase of commercial shop space in Genesis Mall. A police complaint was filed on 23.08.2019. The Corporate Debtor, however, contended that the outstanding amount was adjusted against the allotment of office space in Genesis Mall, owned by its sister concern, M/s. Genesis Infratech Pvt. Ltd. The Tribunal noted that the allegations of forgery and fraud could not be determined under its summary jurisdiction. 4. Validity of the Statutory Demand Notice under Section 8 of IBC, 2016: The Operational Creditor issued a statutory Demand Notice under Section 8 of IBC, 2016, on 08.04.2019, which was duly served on the Corporate Debtor. The Corporate Debtor did not reply to the Demand Notice. However, the Tribunal emphasized that the existence of a pre-existing dispute, as evidenced by the email communications, was crucial in determining the validity of the Demand Notice. 5. Adjustment of Dues Against the Allotment of Office Space/Showroom: The Corporate Debtor argued that the outstanding amount was adjusted against the purchase of office space in Genesis Mall. The Tribunal found this transaction to be extraneous to the case at hand, as the MoU dated 24.07.2015 was solely between the Operational Creditor and the Corporate Debtor. The Tribunal also noted that the cheques provided by the Corporate Debtor as part of a settlement were dishonored, casting doubt on the authenticity of the sale-purchase transaction. Conclusion: The Tribunal concluded that there was a pre-existing dispute between the parties before the issuance of the Demand Notice. Citing the Supreme Court's decision in "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited," the Tribunal emphasized that the existence of a dispute before the receipt of the demand notice is a critical factor. Consequently, the application to initiate CIRP under Section 9 of IBC, 2016, was dismissed due to the pre-existing dispute.
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