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2023 (4) TMI 218 - AT - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - We thus do not find any substance in the submission of the learned counsel for the petitioner that entry tax legislation is not covered by Entry 52 List II? - whether the debt was mired in disputes prior to issue of demand notice? - HELD THAT - This examination would be in line with the well settled test that has been laid down in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED 2017 (9) TMI 1270 - SUPREME COURT as to how the Adjudicating Authority has to examine an Application under Section 9 - It was held that Further, the appellant has withheld amounts that were due to the respondent under the NDA till the matter is resolved. Admittedly, the matter has never been resolved. Also, the respondent itself has not commenced any legal proceedings after the e-mail dated 30th January, 2015 except for the present insolvency application, which was filed almost 2 years after the said e-mail. All these circumstances go to show that it is right to have the matter tried out in the present case before the axe falls. There is a clear admittance of operational debt which was due and payable on the part of the Corporate Debtor and that the operational debt was beyond the threshold limit of Rs.1 lakh. Further, it is pertinent to add here that the Corporate Debtor has admitted that not only was the Operational Creditor entitled to receive payment, but the payment claimed was made in terms of the MoU and invoices were annexed with the claim. It is also unequivocally clear that even on the date of filing of reply to the Section 9 application by the Corporate Debtor, by their own admission, the operational debt which had become due and payable remained unpaid. Therefore the logical corollary is that default had been committed qua the operational debt owed to the Operational Creditor. There are force in the contention of the Appellant that the Adjudicating Authority has committed gross error in ignoring the fact that the Corporate Debtor has admitted its liability to pay the Appellant for services rendered as a real estate agent. There is also substance in the argument that the Corporate Debtor have themselves admitted that the invoices were in terms of the MoU and issued after the Corporate Debtor had confirmed that consideration amount from the allottees had been received. That being so the claims of operational debt cannot be viewed to be pre-mature and hence the ratio of K. Kishan supra is inapplicable given the present set of facts. The operational debt which had admittedly become due and payable having not been disputed prior to issue of demand notice and not been discharged by the Corporate Debtor, this is a fit case for admission of CIRP - the Adjudicating Authority has erroneously rejected the application under Section 9 of IBC. The impugned order is set aside with the following directions - (i) The Corporate Debtor will release payment of Rs.12,72,741.74 by way of Demand Draft in favour of the Operational Creditor being the admitted and undisputed operational debt. (ii) The above payment shall be released within 30 days from the date of uploading of this order failing which the Corporate Debtor would come under the rigours of CIRP on the expiry of said 30 days period. (iii) In case, the Operational Creditor refuses to accept the above sum as payment towards operational debt, the Section 9 petition shall become infructuous and deemed to have been dismissed. (iv) No order as to costs.
Issues Involved:
1. Existence of Operational Debt 2. Admittance and Default of Debt 3. Dispute Prior to Demand Notice 4. Malafide Intentions and Genuine Resolution Summary: Existence of Operational Debt: The appeal arises from the dismissal of an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) by the Adjudicating Authority (NCLT, Special Bench, New Delhi). The Operational Creditor (Appellant) had entered into a Memorandum of Understanding (MoU) with the Corporate Debtor (Respondent) to act as an exclusive real estate agent. The Operational Creditor raised invoices for brokering commissions, which the Corporate Debtor stopped paying from 10.10.2018. The Operational Creditor sent a Demand Notice under Section 8 of IBC on 27.03.2019 for Rs.14,70,943.90, which the Corporate Debtor disputed. Admittance and Default of Debt: The Corporate Debtor admitted a liability of Rs.4,64,852.80 and Rs.6,35,978.98, aggregating to Rs.11,00,831.78. The Corporate Debtor also admitted issuing cheques of Rs.4,32,668.74 and Rs.8,40,073/- towards the outstanding payment. The Appellant claimed the total outstanding amount including interest to be Rs.27,70,574/- as on 16.09.2022. The Adjudicating Authority dismissed the Section 9 application, stating that the Operational Creditor approached with malafide intentions and was unwilling to accept the amounts offered by the Corporate Debtor. Dispute Prior to Demand Notice: The Corporate Debtor argued that the brokerage claimed was not payable due to various reasons, including cancellations by allottees and premature billing. The Corporate Debtor contended that the MoU had expired and that the invoices raised post-31.12.2018 were not legitimate. However, the records showed no material evidence of disputes raised prior to the demand notice. Malafide Intentions and Genuine Resolution: The Adjudicating Authority concluded that the Operational Creditor had malafide intentions, as they refused to accept the cheque payments and were not genuinely seeking resolution. The Tribunal, however, found that the Corporate Debtor had admitted the operational debt and defaulted in payment. The Tribunal noted that the Adjudicating Authority failed to appreciate the evidence of admitted liabilities and the absence of disputes prior to the demand notice. Conclusion: The Tribunal set aside the impugned order, directing the Corporate Debtor to release Rs.12,72,741.74 by way of Demand Draft within 30 days, failing which CIRP would commence. If the Operational Creditor refuses the payment, the Section 9 petition would become infructuous and be dismissed. No order as to costs was made.
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