2019 (8) TMI 1730 - Tri - Companies Law

Company Petition for CIRP Granted Upholding Default Claim; Dismissing Objections

Samarth Lifters Private Limited Versus DBM Geotechnics and Constructions Private Limited

The Company Petition seeking initiation of the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor was allowed by the Tribunal. ... Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - ledger statements showing TDS deducted, showing admission of liability - claim for damages would not mean a liquidated debt - Corporate Debtor has argued that in case of existence of a dispute between the parties or if there is a record of the pendency of the suit or arbitration proceedings, the insolvency application will have to be rejected. HELD THAT:- Even when the dispute is brought to the notice of the Operational Creditor, all that is required to be seen is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence as held by the Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited vs. Kirusa Software Private Limited. [2017 (9) TMI 1270 - SUPREME COURT], where it was held that the knowledge on the part of the Corporate Debtor that the Operational Creditor would certainly agitate his grievance against them by filing a fresh petition under section 9 of the Code. This knowledge on the part of the Corporate Debtor must be construed that there is ample opportunity to maliciously raise a dispute or since there is no Section 8 notice, they can conveniently file a frivolous suit against the Operational Creditor, with the hope that the bench of NCLT, Mumbai would not have any opportunity but to dismiss the Petition looking at the frivolous suit. This appears to be the mindset of the Corporate Debtor in filing the suit. If at all the claim made in the suit filed by the Corporate Debtor is genuine, they should have filed the same well before filing of the winding up petition filed by the Petitioner. Petition allowed - decided in favor of petitioner. Issues:1. Alleged default in payment leading to Corporate Insolvency Resolution Process (CIRP).2. Dispute regarding outstanding dues and validity of claims.3. Pre-existing dispute raised by the Corporate Debtor.4. Relevance of demand notice and pending legal proceedings.Analysis:1. The Company Petition was filed seeking initiation of the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor for defaulting on payments. The Petitioner alleged a default in payment amounting to Rs. 51,72,914, invoking the provisions of Section 9 of the Insolvency and Bankruptcy Code.2. The Petitioner claimed outstanding dues based on work orders issued by the Corporate Debtor for hiring equipment. Discrepancies in payments and contractual obligations were highlighted, leading to a total outstanding amount of Rs. 22,20,411. The Corporate Debtor disputed certain claims, emphasizing a pre-existing dispute and lack of clarity in the amount claimed as damages.3. The Corporate Debtor raised a preliminary objection citing a pending commercial suit filed before the issuance of a fresh demand notice under the Code. The dispute centered around the crystallization of the claimed amount and the nature of the debt, contending that a claim for damages does not constitute a liquidated debt qualifying as an operational debt.4. The Tribunal examined the relevance of the demand notice and the existence of a pre-existing dispute between the parties. Referring to legal precedents, the Tribunal emphasized the need for a genuine dispute and rejected the Corporate Debtor's arguments, concluding that the suit filed was frivolous and lacked merit. The Petition was allowed, directing communication of the order to both parties and the Insolvency Resolution Professional promptly.