2019 (6) TMI 133 - AT - Insolvency and Bankruptcy

Dismissal of Insolvency Application Appeal due to Pre-Existing Dispute under Bankruptcy Code

CIL Australia North Pty. Ltd. Versus M/s. Sharp Corp Ltd.

The appeal against the rejection of the application under section 9 of the Insolvency & Bankruptcy Code by the National Company Law Tribunal was ... Maintainability of suit - Proceedings against the Operational Creditor - Rejection of application on the ground of pre-existing dispute - section 9 of the Insolvency & Bankruptcy Code 2016 - HELD THAT:- Hon’ble Supreme Court in Innoventive Industries Ltd. Vs. ICICI Bank [2017 (9) TMI 58 - SUPREME COURT] observed that the moment the Adjudicating Authority finds that there is a pre-existing dispute, the ‘Operational Creditor’ gets out of clutches of the Court. Admittedly the suit in question relates to same agreement pursuant to which the claim has been made by the ‘Operational Creditor’. The suit has been filed by the Respondent prior to issuance of Demand Notice u/s 8(1). Whether the suit is maintainable or not, such question cannot be determined by National Company Law Tribunal (NCLT) or by this Appellate Tribunal - the argument that the suit is not maintainable cannot be raised nor to be decided. The application u/s 9 is not maintainable - appeal dismissed. Issues:- Appeal against rejection of application under section 9 of the Insolvency & Bankruptcy Code, 2016 on the ground of pre-existing dispute.Analysis:The appeal was filed by the Operational Creditor against the rejection of their application under section 9 of the Insolvency & Bankruptcy Code by the National Company Law Tribunal (NCLT) based on a pre-existing dispute. The Appellant argued that the Demand Notice was issued before the suit was filed, hence it cannot be considered a pre-existing dispute. However, the Respondent contended that the notice was a general notice for arbitration and not a Demand Notice under section 8(1) of the Code. The Tribunal examined the documents and found that the Demand Notice was issued after the suit was filed, indicating a pre-existing dispute.The Appellant further argued that the suit was filed in a court without jurisdiction and without evidence, citing a Supreme Court decision. The Tribunal considered the relevant legal precedents, including the Supreme Court's observations in 'Innoventive Industries Ltd. Vs. ICICI Bank,' highlighting that once a pre-existing dispute is found, the Operational Creditor is no longer under the purview of the Code. The Tribunal also referenced the Supreme Court's decision in the case of 'Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited,' emphasizing the importance of a genuine dispute for rejecting an application under section 9.The Tribunal concluded that since the suit was filed before the Demand Notice under section 8(1), and there was a pre-existing dispute, the application under section 9 was not maintainable. It was noted that the question of the suit's maintainability or the validity of the plea raised therein could not be determined by the NCLT or the Appellate Tribunal while dealing with an application under section 9. Making such determinations would amount to deciding on the merits of the suit, which is not permissible in this context. Therefore, the appeal was dismissed due to the absence of merit, with no costs awarded.