2019 (5) TMI 670 - Tri - Insolvency and Bankruptcy

Tribunal dismisses petition for Corporate Insolvency Resolution Process, warns against misuse of Insolvency and Bankruptcy Code

The tribunal rejected the petition to initiate Corporate Insolvency Resolution Process (CIRP) against the respondent due to the time-barred and disputed ... Initiation of Corporate Insolvency Resolution Process (CIRP) - Default on the part of Corporate Debtor to make the payment - appointment of qualified Interim Resolution Professional - HELD THAT:- As per section 2 of the Code, the provisions of this Code shall apply to any Company incorporate under provisions of the Companies Act, 2013 (18 of 2013) or under any previous Company law; any Limited Liability Partnership incorporated under the Limited Liability Partnership Act, 2008 etc. in relation to their, liquidation, voluntary Liquidation or bankruptcy as the case maybe. The instant claim relates to the year 2012 and the Petitioner itself admits that last transaction with the Respondent was on 01.01.2013. Moreover, the Respondent has promptly denied the claim of the petitioner vide their reply dated 22.06.2017 by denying the liability. And the claim itself is basing on the purported letters issued on 08.10.2012, 30.03.2013, 30.09.2013 and 31.03.2014 which are denied by the Respondent. Therefore, the claim itself is barred by laches and limitation apart veracity of claim itself. Moreover, the MoU dated 14.01.2013 in question, itself contained several terms and conditions to claim any bills as detailed supra. Therefore, disputed issues cannot be gone into the proceedings in summary proceedings like instant proceedings initiated under the Code. The instant Company Petition is not only barred by laches and limitations and then there is a substantial dispute raised by the Respondent. It is a settled position of law that the provisions of Code cannot be invoked for recovery of outstanding amount but it can be invoked to initiate CIRP for justified reasons as per the Code - The Hon'ble Supreme Court in the case of Mobilox Innovations (P.) Ltd. [2017 (9) TMI 1270 - SUPREME COURT], has inter alia, held that IBC, 2016 is not intended to be substitute to a recovery forum. Thus the claim in question itself is disputed and the same is also barred by laches and limitations, and the Petition is filed with intention to recover the alleged outstanding amount and thus it is liable to be rejected - petition dismissed. Issues Involved:1. Initiation of Corporate Insolvency Resolution Process (CIRP)2. Existence of operational debt3. Limitation period for debt claims4. Existence of a dispute between parties5. Financial status of the corporate debtor6. Use of legal proceedings for debt recoveryIssue-wise Detailed Analysis:1. Initiation of Corporate Insolvency Resolution Process (CIRP):The petitioner, M/s. Som Distilleries & Breweries Limited, sought to initiate CIRP against M/s. United Breweries Limited under sections 8 and 9 of the Insolvency and Bankruptcy Code (IBC), 2016. The operational creditor claimed that the corporate debtor defaulted on a payment of Rs. 5,33,44,500 towards short-lifting of beer. The tribunal examined the evidence, including the agreement and subsequent renewals, and found that the petition was filed to recover the outstanding amount rather than to initiate CIRP.2. Existence of Operational Debt:The petitioner raised bills for the years 2012-13 and 2013-14 for short-lifting charges as per the agreement. The respondent denied any outstanding amount, arguing that the debt was time-barred and that the agreement had expired on 31.03.2013. The tribunal noted that the last transaction was on 01.01.2013, and the claim was based on letters from 2012 to 2014, which were disputed by the respondent.3. Limitation Period for Debt Claims:The respondent contended that the debt claim was time-barred as it was more than three years old. The tribunal referenced the Hon’ble Supreme Court's judgment in B.K. Educational Services (P.) Ltd. v. Parag Gupta and Associates, which held that the Limitation Act, 1963 applies to the IBC. The tribunal concluded that the claim was indeed time-barred, as it was filed after the limitation period had expired.4. Existence of a Dispute Between Parties:The respondent argued that there was a pre-existing dispute regarding the debt, citing ongoing civil litigation and the denial of the debt in their reply to the demand notice. The tribunal referred to the Hon’ble Supreme Court's judgment in Mobilox Innovations Private Limited v. Kirusa Software Private Limited, which emphasized that the existence of a dispute must be considered before admitting a CIRP application. The tribunal found substantial disputes regarding the debt and the agreement's terms.5. Financial Status of the Corporate Debtor:The respondent provided evidence of its financial soundness, including unaudited financial results showing profits and a significant number of employees. The tribunal acknowledged that the respondent was financially stable and not in a precarious position, which further supported the decision not to initiate CIRP.6. Use of Legal Proceedings for Debt Recovery:The tribunal emphasized that the IBC is not intended as a substitute for a debt recovery forum. It highlighted that the petitioner’s intention was to recover the outstanding amount rather than genuinely seeking CIRP. The tribunal reiterated that the provisions of the IBC should not be misused for debt recovery purposes.Conclusion:The tribunal rejected the petition, noting that the claim was time-barred, disputed, and the petition was filed with the intention of debt recovery rather than initiating CIRP. The tribunal allowed the petitioner to seek remedies under other applicable laws for debt recovery. No costs were awarded.