Tribunal upholds Section 9 application against corporate debtor, finding liability for outstanding dues

The Tribunal dismissed the appeal, upholding the admission of the Section 9 application under the Insolvency and Bankruptcy Code, 2016 against the corporate debtor. The operational creditor's claim for outstanding dues was substantiated, leading to the finding of liability on the part of the corporate debtor. The Tribunal rejected arguments regarding pre-existing disputes, cross-dealings, and the validity of agreements, ultimately affirming the initial decision and holding the corporate debtor accountable for the dues.

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Issues Involved:

1. Admission of Section 9 application under the Insolvency and Bankruptcy Code, 2016 (IBC).
2. Claim of outstanding dues by the operational creditor.
3. Delivery and acceptance of goods.
4. Alleged pre-existing dispute and cross-dealings.
5. Service of Section 8 notice.
6. Lifting of the corporate veil.
7. Validity of the deed of assignment and mutual tripartite agreement.
8. Arbitration proceedings and their impact on the current case.

Issue-wise Detailed Analysis:

1. Admission of Section 9 application under the Insolvency and Bankruptcy Code, 2016 (IBC):
The operational creditor, Optiemus Infracom Ltd., filed an application under Section 9 of the IBC against Indus Mobile Distribution P. Ltd., which was admitted by the Adjudicating Authority (National Company Law Tribunal, Single Bench, Chennai) on March 28, 2019. The appeal was filed by a shareholder and director of the corporate debtor against this order.

2. Claim of outstanding dues by the operational creditor:
The operational creditor claimed Rs. 27,79,59,587.21 as outstanding dues for mobile handsets and accessories sold to the corporate debtor from February 25, 2015, to March 20, 2018. The operational creditor provided invoices and delivery documents to substantiate the claim. A cheque issued by the corporate debtor for Rs. 27,79,59,587 bounced, leading to the issuance of a notice under Section 8 of the IBC.

3. Delivery and acceptance of goods:
The operational creditor delivered the goods to Univercell Telecommunications India P. Ltd., a sister concern of the corporate debtor, as per the arrangement between the parties. The corporate debtor acknowledged the delivery of mobile handsets and accessories to its sister concern.

4. Alleged pre-existing dispute and cross-dealings:
The appellant argued that the goods delivered to Univercell were later sold to MPS Telecom Retail P. Ltd., a subsidiary of the operational creditor, and thus, the liability was disputed. However, the operational creditor contended that the asset purchase agreement between Univercell and MPS did not include the stock transferred and was already under arbitration.

5. Service of Section 8 notice:
The operational creditor sent the Section 8 notice to the registered address of the corporate debtor through Blue Dart Courier and the Postal Department, with delivery reports placed before the Adjudicating Authority. The corporate debtor claimed non-receipt of the notice, but the Adjudicating Authority found the notice was duly served.

6. Lifting of the corporate veil:
The appellant referred to the judgment in ArcelorMittal India P. Ltd. v. Satish Kumar Gupta, arguing that the corporate veil should be lifted to examine cross-dealings between the parties. However, the Tribunal found no pre-existing dispute or improper conduct that warranted lifting the veil.

7. Validity of the deed of assignment and mutual tripartite agreement:
The appellant referred to a deed of assignment and a mutual tripartite agreement involving the corporate debtor, MPS Telecom, and the operational creditor. The operational creditor did not sign the tripartite agreement, rendering it incomplete. The Tribunal found that the incomplete document did not affect the liability of the corporate debtor.

8. Arbitration proceedings and their impact on the current case:
The arbitration proceedings regarding the asset purchase agreement between Univercell and MPS started after the Section 9 application was filed. The Tribunal held that the arbitration proceedings did not create a pre-existing dispute affecting the current case.

Conclusion:
The Tribunal dismissed the appeal, finding no substance in the arguments raised by the corporate debtor. The Section 9 application was properly admitted, and the operational creditor's claim was upheld. The Tribunal agreed with the Adjudicating Authority's decision and found that the corporate debtor was liable for the outstanding dues.

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