2023 (5) TMI 1160 - SCH - Insolvency and Bankruptcy

Operational Debt or not - advance payment paid by the Operational Creditor and not refunded by the Corporate Debtor - falls within the scope of Operational Creditor or not - NCLT held that the alleged debt is not an Operational Debt as defined u/s 5(21) of IBC, 2016 - HELD THAT - The National Company Law Appellate Tribunal NCLAT has reversed the above decision while relying upon the decision of this Court in Consolidated Construction Consortium Limited vs Hitro Energy Solutions Private Limited 2022 (2) TMI 254 - SUPREME COURT , where it has been held that Section 5(21) has to be interpreted in a broad and purposive manner in order to include all those who provide or receive operational services from the Corporate Debtor which ultimately leads to an operational debt. The NCLT in its original order had not considered the other defences that were raised by the applicant to the application under Section 9 of the IBC. Hence, on remand, all the rights and contentions of the parties on the merits of the case are kept open to be urged before and decided by the NCLT. Application disposed off.

Issues involved:
Interpretation of Section 5(20) and Section 5(21) of the Insolvency and Bankruptcy Code 2016 [IBC], reversal of decision by the National Company Law Appellate Tribunal [NCLAT], consideration of other defenses under Section 9 of the IBC, disposal of Civil Appeal and pending applications.

Interpretation of Section 5(20) and Section 5(21) of the IBC:
The National Company Law Tribunal [NCLT] initially held that the alleged debt was not an "Operational Debt" as defined under Section 5(21) of the IBC because the corporate debtor was the service provider, and the operational creditor had only filed the petition based on an advance payment not refunded by the corporate debtor. The NCLT dismissed the petition on this basis. However, the NCLAT reversed this decision, citing a previous judgment that emphasized interpreting Section 5(21) broadly to include all those involved in providing or receiving operational services from the corporate debtor. This broad interpretation was deemed necessary to encompass situations leading to operational debt, thus overturning the NCLT's initial ruling.

Reversal of decision by the NCLAT:
The NCLAT's decision to reverse the NCLT's ruling was based on the interpretation of Section 5(21) of the IBC in a broad and purposive manner, as established in a previous case law. By aligning with the precedent set in Consolidated Construction Consortium Limited vs Hitro Energy Solutions Private Limited, the NCLAT emphasized the importance of inclusivity in defining operational debt, especially concerning parties providing or receiving operational services from the corporate debtor. This reversal highlighted the significance of a comprehensive understanding of operational debt within the framework of the IBC.

Consideration of other defenses under Section 9 of the IBC:
The NCLT's original order was criticized for not addressing the additional defenses raised by the applicant under Section 9 of the IBC. Consequently, the case was remanded to allow for a thorough examination of all rights and contentions presented by the involved parties. This decision ensured that all aspects of the case, including the raised defenses, would be scrutinized and decided upon by the NCLT, underscoring the importance of a comprehensive evaluation of legal arguments in insolvency proceedings.

Disposal of Civil Appeal and pending applications:
Following the clarification provided by the NCLAT and the remand of the case to the NCLT for further consideration, the Civil Appeal was disposed of. Additionally, any pending applications were deemed disposed of as well, signifying the conclusion of the legal proceedings related to the interpretation of Section 5(20) and Section 5(21) of the IBC and the associated implications for operational debt matters. This disposal marked the resolution of the immediate legal disputes and applications connected to the case.

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