2025 (3) TMI 1191 - AT - IBC

Admission of section 9 application - existence of pre-existing disputes between the parties or not - demand notice validly contested or not - HELD THAT - Present is a case where demand notice issued under Section 8 was replied and reply notice issued by the corporate debtor dated 28.01.2020 is clearly notice of dispute within the meaning of Section 9(5)(d). The Adjudicating Authority in the impugned order although has noticed the reply dated 28.12.2019 as well as earlier reply sent by the corporate debtor to the legal notice but has brushed aside the said reply relying on reconciliation meeting held on 16.10.2019. The reconciliation meeting is claimed on 16.10.2019 whereas the facility termination was effected on 26.12.2019 and demand notice was issued only on 03.01.2020 which was replied by notice of dispute dated 28.01.2020. The issue raised by the corporate debtor in reply to the demand notice cannot be held to be moonshine defence. In view of the judgment of the Hon ble Supreme Court in Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. 2017 (9) TMI 1270 - SUPREME COURT the Adjudicating Authority ought not to have admitted Section 9 application. There being pre- existing dispute which existed much prior to issuance of demand notice which is reflected from correspondences between the parties legal notice issued by the operational creditor dated 01.07.2019 and reply to the legal notice sent by the corporate debtor on 21.08.2019. In the reply submitted by the corporate debtor relevant materials are brought on the record which clearly reflected a pre-existing dispute between the parties prior to issuance of demand notice. Conclusion - The Adjudicating Authority ought not to have admitted Section 9 application there being pre-existing dispute which existed much prior to issuance of demand notice which is reflected from correspondences between the parties. Appeal allowed.

Summary

ISSUES PRESENTED and CONSIDERED

The core legal issue considered in this judgment is whether there was a pre-existing dispute between the parties that should have precluded the admission of the Section 9 application under the Insolvency and Bankruptcy Code, 2016 (IBC). The Tribunal also considered the implications of the Facility Agreement's arbitration clause and whether the operational creditor's demand notice was validly contested by the corporate debtor.

ISSUE-WISE DETAILED ANALYSIS

1. Pre-existing Dispute

Relevant legal framework and precedents: The Tribunal relied on the precedent set by the Supreme Court in "Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd.," which establishes that a Section 9 application under the IBC should not be admitted if there is a genuine pre-existing dispute between the parties.

Court's interpretation and reasoning: The Tribunal examined the correspondences between the parties, including the legal notice issued by the operational creditor on 01.07.2019 and the corporate debtor's reply on 21.08.2019. The Tribunal noted that the corporate debtor had consistently raised issues regarding deficiencies in services and had disputed the claims made by the operational creditor.

Key evidence and findings: The Tribunal highlighted several communications, including emails dated 15.06.2019 and 20.06.2019, which indicated ongoing disputes over service quality. The Tribunal also noted the termination of the Facility Agreement by the corporate debtor on 26.12.2019, citing financial losses due to the operational creditor's deficiencies.

Application of law to facts: The Tribunal applied the legal principles from the "Mobilox Innovations" case to the facts, concluding that the corporate debtor had effectively communicated a pre-existing dispute before the operational creditor's demand notice was issued.

Treatment of competing arguments: The operational creditor argued that the issues should be resolved by a competent court as per the Facility Agreement. However, the Tribunal found that the existence of an arbitration clause did not negate the presence of a pre-existing dispute relevant to the Section 9 application.

Conclusions: The Tribunal concluded that the pre-existing dispute was not a mere moonshine defense but a genuine issue, thereby invalidating the Section 9 application.

2. Demand Notice and Reply

Relevant legal framework and precedents: Under Sections 8 and 9 of the IBC, a demand notice must be followed by a valid reply from the corporate debtor to contest the claim.

Court's interpretation and reasoning: The Tribunal found that the corporate debtor's reply to the demand notice dated 28.01.2020 constituted a valid notice of dispute under Section 9(5)(d) of the IBC.

Key evidence and findings: The Tribunal noted that the corporate debtor's reply detailed the ongoing disputes and contested the amounts claimed by the operational creditor.

Application of law to facts: The Tribunal determined that the corporate debtor's reply, which included references to previous disputes and financial discrepancies, met the criteria for a valid notice of dispute.

Treatment of competing arguments: While the operational creditor relied on a reconciliation meeting held on 16.10.2019, the Tribunal found that this did not negate the pre-existing disputes highlighted in the corporate debtor's reply.

Conclusions: The Tribunal concluded that the demand notice was effectively contested, and the Section 9 application should not have been admitted.

SIGNIFICANT HOLDINGS

Preserve verbatim quotes of crucial legal reasoning: The Tribunal emphasized, "In view of the judgment of the Hon'ble Supreme Court in 'Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd.,' the Adjudicating Authority ought not to have admitted Section 9 application. There being pre-existing dispute which existed much prior to issuance of demand notice which is reflected from correspondences between the parties."

Core principles established: The Tribunal reaffirmed the principle that a genuine pre-existing dispute, if established, precludes the admission of a Section 9 application under the IBC.

Final determinations on each issue: The Tribunal allowed the appeal, set aside the order admitting the Section 9 application, and rejected the application filed by the operational creditor. The Tribunal noted that the operational creditor could pursue remedies under the Facility Agreement's arbitration clause.

The Tribunal also directed that the amount deposited by the appellant as per the interim order be refunded and that the appellant is responsible for the fees and expenses of the Interim Resolution Professional (IRP), to be paid within one month upon submission of relevant documentation.