2020 (4) TMI 679 - Tri - Insolvency and Bankruptcy

Tribunal denies CIRP petition due to lack of debt proof. Solvency, projects, public interest considered.

R.V.S. Rao Versus B and B Infrastructure Ltd.

R.V.S. Rao Versus B and B Infrastructure Ltd. - TMI Issues Involved:1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 7 of the IBC, 20162. Determination of Financial Creditor Status3. Existence of Debt and Default4. Maintainability of the Petition under the IBC Amendment Ordinance, 20195. Solvency of the Respondent Company6. Jurisdiction of the Tribunal7. Appropriate Forum for Dispute ResolutionDetailed Analysis:1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 7 of the IBC, 2016The Petitioners filed CP (IB) No. 331/BB/2019 under Section 7 of the Insolvency and Bankruptcy Code (IBC), 2016, seeking to initiate CIRP against the Respondent for an outstanding amount of Rs. 8,25,37,700. The Petitioners argued that they had invested in the Respondent’s project with buy-back promises and arrangements, and upon exercising their buy-back option, the Respondent failed to pay the agreed amount.2. Determination of Financial Creditor StatusThe Petitioners contended that they are Financial Creditors as defined under Section 5(8)(f) of the IBC, 2016, as the transaction had the commercial effect of a borrowing. They argued that since they exercised the buy-back option, they should be considered as having extended a loan rather than purchasing flats, thus qualifying them as Financial Creditors.3. Existence of Debt and DefaultThe Respondent opposed the petition, arguing that the Petitioners had already received the principal amount of Rs. 4,13,34,068 and that there was no provision for interest in the agreements. The Tribunal noted that the Petitioners had unilaterally added interest and that the claimed buy-back price for one apartment was incorrectly stated. The Tribunal found that the Petitioners failed to prove the existence of debt and default as per the agreements.4. Maintainability of the Petition under the IBC Amendment Ordinance, 2019The Respondent argued that the petition was not maintainable under the IBC Amendment Ordinance, 2019, which came into force on December 28, 2019. The Tribunal noted that the Petitioners failed to satisfy the conditions mentioned in the amendment, thus questioning the maintainability of the petition.5. Solvency of the Respondent CompanyThe Respondent provided evidence of its solvency, including its revenue and profit over the last three years, worth over Rs. 300 crore in projects, and assets worth over Rs. 90 crore. The Tribunal acknowledged the Respondent's solvency and its successful completion of several projects, noting that the initiation of CIRP would adversely affect numerous stakeholders and public interest.6. Jurisdiction of the TribunalThe Tribunal emphasized that the proceedings under the IBC are summary in nature and that disputed questions of fact and law cannot be adjudicated in such proceedings. It was noted that the Petitioners should seek remedies available under civil law, such as filing a suit for specific performance or recovery of the alleged outstanding amount.7. Appropriate Forum for Dispute ResolutionThe Tribunal pointed out that the agreements contained an arbitration clause, which the Petitioners should have invoked to resolve the disputes. The Tribunal stressed that the IBC is not a substitute for debt enforcement or recovery proceedings, as established by the Supreme Court in various judgments.Conclusion:The Tribunal concluded that the Petitioners failed to establish their claim and the existence of debt and default necessary to initiate CIRP. The petition was rejected, and the Petitioners were advised to seek appropriate civil remedies. The Tribunal emphasized the importance of adhering to the terms of the agreements and the appropriate forum for dispute resolution.