2020 (12) TMI 952 - AT - Insolvency and Bankruptcy

Operational Creditor's Appeal Dismissed Due to Pre-Existing Dispute

The appeal against the dismissal of the Section 9 application by the National Company Law Tribunal (NCLT) was filed by the Operational Creditor, M/s. ... Pre-existing dispute - Section 9 application under Insolvency and Bankruptcy Code, 2016 - Existence of dispute prior to demand notice (Mobilox principle) - Operational creditor's claim of a debt being 'due and payable' - Adjudicating Authority's power to reject under Section 9Pre-existing dispute - Section 9 application under Insolvency and Bankruptcy Code, 2016 - Existence of dispute prior to demand notice (Mobilox principle) - Whether the Adjudicating Authority was justified in dismissing the Section 9 application on the ground that a pre-existing dispute between the Operational Creditor and the Corporate Debtor barred initiation of insolvency proceedings. - HELD THAT: - The Tribunal examined the contemporaneous correspondence and ledger entries and accepted that the email dated 02.01.2018 from the Operational Creditor records taking back 9,116.4 kgs of unused film and rejecting claims as to laminated/used film. The ledger entries relied upon by the Operational Creditor did not demonstrate with required particularity that payments between 01.02.2018 and 05.02.2018 were made specifically to discharge the November 2017 invoice; the ongoing pattern of transactions rendered the ledger inconclusive as to settlement of that specific claim. Subsequent emails of January-February 2019 and specifically the communication of 08.02.2019 show the Corporate Debtor continued to assert quality-related loss, instructed cessation of future purchases in the category and described the issue as not settled. The material therefore established a plausible, tangible dispute existing prior to and at the stage of the demand process rather than a spurious or vexatious defence. Applying the principle in Mobilox Innovations (that the Adjudicating Authority at the admission stage must determine whether a dispute is prima facie pre-existing and not patently feeble), and the settled law that a real pre-existing dispute disentitles an operational creditor from invocation of Section 9, the Tribunal held there was sufficient evidence of a pre-existing dispute. Consequently the Adjudicating Authority rightly rejected the Section 9 petition on maintainability grounds. [Paras 16, 19, 20, 21, 22]The Adjudicating Authority's dismissal of the Section 9 application on the ground of a pre-existing dispute is upheld.Final Conclusion: The appeal is dismissed; the impugned order of the Adjudicating Authority rejecting the Section 9 petition on the ground of a pre-existing dispute is affirmed and there shall be no order as to costs. Issues Involved:1. Pre-existing dispute regarding the quality of goods supplied by the Operational Creditor.2. Maintainability of the Section 9 Application under the Insolvency and Bankruptcy Code, 2016.Issue-wise Detailed Analysis:1. Pre-existing dispute regarding the quality of goods supplied by the Operational Creditor:The Operational Creditor, M/s. Sumilon Polyester Private Limited, filed an appeal against the dismissal of their Section 9 application by the National Company Law Tribunal (NCLT), Ahmedabad Bench. The NCLT observed that there was a pre-existing dispute regarding the quality of the materials supplied by the Operational Creditor. The dispute was evidenced by multiple emails exchanged between the parties, including a complaint dated 28.12.2017, which was acknowledged by the Operational Creditor on 02.01.2018. The Operational Creditor agreed to take back 9116.4 kgs of unused material due to quality issues. The Corporate Debtor had also issued debit notes against the defective material supplied.The Appellant contended that the dispute was resolved by May 2018, as evidenced by emails dated 09.01.2019 and 10.01.2019. However, the Respondent argued that the quality issue was never resolved, supported by emails dated 04.01.2019 and 08.02.2018. The Respondent deducted amounts from the payments due to substandard material and raised debit notes, which were communicated to the Operational Creditor.The Tribunal noted that the existence of a dispute must be pre-existing, i.e., before the receipt of the demand notice or invoice. The emails and ledger accounts indicated ongoing disputes regarding the quality of goods, which were not limited to a single transaction but were part of a continuous issue. The Tribunal found no cogent evidence that the dispute was resolved, and the ledger entries did not explicitly show payments made towards the disputed November 2017 transaction.2. Maintainability of the Section 9 Application under the Insolvency and Bankruptcy Code, 2016:The Tribunal examined whether the Section 9 application was maintainable, given the pre-existing dispute. The Supreme Court in 'Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited' and 'Innoventive Industries Ltd. v. ICICI Bank and Anr.' established that the existence of a dispute before the receipt of the demand notice or invoice is crucial. The Adjudicating Authority must determine if there is an operational debt exceeding Rs. 1 lakh, if the debt is due and payable, and if there is a pre-existing dispute.In this case, the Tribunal found that the dispute regarding the quality of goods existed before the demand notice was issued. The emails and ledger entries supported the existence of an ongoing dispute. The Tribunal emphasized that the IBC is not a substitute for a recovery forum and should not be invoked in cases of real disputes.The Tribunal concluded that the defence raised by the Respondent was not spurious, frivolous, or vexatious. Therefore, the Section 9 application was not maintainable due to the pre-existing dispute. The Tribunal upheld the NCLT's decision to dismiss the application and dismissed the appeal, finding no legal infirmity in the Impugned Order.