2022 (2) TMI 413 - 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 - HELD THAT - From the bare perusal of the file it can be inferred that admittedly there is no agreement entered into between parties submitted for supply of building material despite the fact both the applicant is alleged to have been dealing in supply of building material, whereas, the respondent is builder. Moreover, only one bill had been put on record, but the same was never endorsed by any authorized representative of the respondent - There is nothing on record to establish the fact that the respondent ever made any demand of supply of the bricks etc. to the applicant herein. These all facts shows that the bill raised is forged and fabricated to make out false ground to put the respondent under CIRP. These all act and omissions on the part of the applicant and respondent clearly shows that there is an active collusion between them to defraud the other creditors and to facilitate the respondent to enjoy the rigors of the IBC Code. Further, had there been any genuine admission on the part of the respondent, respondent might have paid the disputed amount despite the fact the said petition is pending before this Tribunal year and alleged amount is only of one lac. It is a well settled principle of law that NCLT can't be allowed to be played at the hands of the unscrupulous parties. This tribunal is of affirm view that the present petitioner failed to establish on record that he actually supplied the building material to the respondents and an amount of rupees one lac was due rather the petition is collusive in nature - the present petition deserves to be dismissed.

Summary

Issues:
Application under section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process based on operational debt.

Analysis:
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 respondent company, claiming to be the corporate debtor. The applicant detailed the transactions leading to the petition, stating that the operational creditor provided materials and labor for a project, amounting to a total of ?1,66,680. Despite various reminders and a demand notice, the corporate debtor failed to release the outstanding payment of ?1,86,900.8. The demand notice was sent but returned undelivered. In response, the corporate debtor explained that the project was stalled due to the architect's failure to prepare and approve the building plan, resulting in a lack of funds to continue. The debtor expressed willingness to pay and engage the creditor once the project resumed.

The Tribunal considered the arguments of both parties and examined the case records. It noted the absence of any formal agreement for the supply of building materials, despite the operational nature of the creditor and the builder status of the debtor. Only one invoice was presented, not endorsed by any authorized representative of the respondent. The respondent's acknowledgment of the demand notice via email was highlighted. The Tribunal found no prior correspondence regarding billing or material supply between the parties. It concluded that the presented bill appeared forged and collusive to trigger the respondent's Corporate Insolvency Resolution Process under false pretenses. The Tribunal emphasized the lack of genuine admission or payment despite the pending petition and the relatively small disputed amount. It deemed the petition collusive and lacking evidence of actual material supply, leading to its dismissal. The Tribunal emphasized the importance of preventing misuse of the Insolvency and Bankruptcy Code by unscrupulous parties. Consequently, the petition was dismissed with no costs awarded, and the file was archived.