2019 (1) TMI 521 - AT - Insolvency and Bankruptcy

Dismissal of 'Operational Creditor' claim under Insolvency & Bankruptcy Code - Lack of Evidence

M/s. Acquisory Consulting LLP Versus M/s. BCC Infrastructure Pvt. Ltd.

The National Company Law Appellate Tribunal dismissed the claim made by 'M/s. Acquisory Consulting LLP' as an 'Operational Creditor' under Section 9 of ... Initiation of the ‘Corporate Insolvency Resolution Process’ - no demand notice under Section 8(1) of the ‘I&B Code’ was served on the ‘Corporate Debtor’ - Held that:- Appellant though enclosed invoices dated 6th June, 2016, 21st October, 2016 and 4th April, 2017 and different e-mails and highlighted certain facts by the Appellant has failed to bring on record any document to suggest that the Appellant has rendered services to the ‘Corporate Debtor’ - Thus there being a disputed question of fact, the Adjudicating Authority had rightly refused to entertain application under Section 9 preferred by the Appellant - appeal dismissed. Issues:- Claim of 'Operational Creditor' under Section 9 of the Insolvency and Bankruptcy Code- Rejection of claim due to lack of demand notice under Section 8(1) of the I&B Code- Validity of Engagement Letter and proof of services rendered- Disputed relationship between the parties- Refusal to entertain application under Section 9 due to lack of evidenceAnalysis:The judgment by the National Company Law Appellate Tribunal, New Delhi involved a claim made by 'M/s. Acquisory Consulting LLP' as an 'Operational Creditor' under Section 9 of the Insolvency and Bankruptcy Code against 'M/s. BCC Infrastructure Pvt. Ltd.' The Adjudicating Authority dismissed the application citing reasons that the Appellant did not meet the criteria of an 'Operational Creditor' and that no demand notice under Section 8(1) of the I&B Code was served on the 'Corporate Debtor'.The Appellant referred to an Engagement Letter dated 5th September, 2013, to support their claim. However, the Tribunal noted discrepancies in the letter, including overwriting and lack of signatures, leading to the rejection of its validity. Additionally, the proof of services rendered, presented as email exchanges, was not considered as a demand notice under Section 8(1) of the I&B Code.The Appellant argued that the CFO of the Respondent had signed the Engagement Letter and was authorized to do so. Despite this, the Tribunal found no substantial evidence to establish a valid relationship between the parties. The lack of concrete documentation to prove the services rendered to the 'Corporate Debtor' further weakened the Appellant's case.Ultimately, the Tribunal concluded that the Adjudicating Authority was correct in refusing to entertain the application under Section 9 due to the absence of sufficient evidence supporting the Appellant's claims. The appeal was dismissed, emphasizing the lack of merit and absence of costs awarded.