2022 (5) TMI 922 - AT - Insolvency and Bankruptcy

Tribunal dismisses appeal on Insolvency & Bankruptcy Code Section 9 application

The Tribunal dismissed the appeal against the order admitting the application under Section 9 of the Insolvency & Bankruptcy Code. It found that the ... Initiation of CIRP - NCLT admitted the application - Operational Creditors - pre-existing disputes with respect to the price of the equipment supplied or not - HELD THAT:- The issue whether the ‘dispute’ raised is an assertion of fact has to be decided on the touchstone of the ratio laid down by the Hon’ble Apex Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] where it was held that Going by the test of “existence of a dispute”, it is clear that without going into the merits of the dispute, the appellant has raised a plausible contention requiring further investigation which is not a patently feeble legal argument or an assertion of facts unsupported by evidence. The defense is not spurious, mere bluster, plainly frivolous or vexatious. A dispute does truly exist in fact between the parties, which may or may not ultimately succeed, and the Appellate Tribunal was wholly incorrect in characterizing the defense as vague, got-up and motivated to evade liability. It is significant to mention that the Corporate Debtor does not deny the issuance of three cheques totalling to Rs.35,54,755/-. It is their only case that there was a pre-existing dispute between the parties. It is pertinent to note that the Corporate Debtor has not raised any pre-existing dispute in reply to the Demand Notice under Section 8 of the Code. Be that as it may, the contention of the Learned Counsel that the MOU expired on 30.09.2016 and, therefore, the amounts raised for the invoices for the subsequent period is not payable, is unsustainable as the documentary evidence establishes that the claims made by the Operational Creditor were against the invoices for the period 10.03.2017 to 15.09.2018 and have no nexus with the MOU - It is seen from the record that there is no ‘disputed questions of fact’ and that the argument raised regarding the existence of a dispute is a patently feeble legal argument unsupported by evidence. The defence is spurious and a plainly frivolous one. There is no material on record to establish that there was any dispute prior to the issuance of the Section 8 Demand Notice or that there was any assertion of fact supported by any evidence to establish the existence of dispute - Appeal dismissed. Issues Involved:Admission of application under Section 9 of the Insolvency & Bankruptcy Code, 2016 based on pre-existing dispute between parties.Detailed Analysis:1. Admission of Application: The appeal was filed under Section 61 of the Insolvency & Bankruptcy Code against the order passed by the Adjudicating Authority admitting the application filed by the Operational Creditor under Section 9 of the Code. The Appellant contended that there were pre-existing disputes between the parties regarding the price of goods supplied. The Adjudicating Authority admitted the application observing that the Corporate Debtor did not raise any dispute before the application was filed, and the invoices raised by the Operational Creditor were not linked to the MOU signed between the parties in 2016.2. Existence of Pre-Existing Dispute: The Appellant argued that the Corporate Debtor had raised substantial disputes regarding the valuation of products supplied before the application was filed. However, the Respondent contended that the Corporate Debtor did not raise any pre-existing dispute in response to the Demand Notice under Section 8 of the Code. The Respondent also highlighted that the MOU had expired, and the claims made by the Operational Creditor were against invoices issued after the MOU period.3. Legal Precedents: The Appellant cited legal precedents such as the Supreme Court judgments in 'Transmission Corporation of Andhra Pradesh Limited v. Equipment Conductors and Cables Limited' and 'Mobilox Innovations Pvt. Ltd. v. Kirusa Software (P) Limited' to support the argument that the existence of a dispute must be pre-existing before the receipt of the demand notice or invoice. The judgments emphasized the need for a genuine dispute supported by evidence to reject an application under Section 9 of the Code.4. Decision and Rationale: The Tribunal noted that the Corporate Debtor did not deny issuing three cheques totaling a specific amount but claimed a pre-existing dispute, which was not raised in response to the Demand Notice. The Tribunal found that the arguments regarding the pre-existing dispute were feeble and unsupported by evidence. Despite opportunities for negotiation, the matter remained unresolved. Relying on legal precedents and the lack of evidence supporting a pre-existing dispute, the Tribunal dismissed the appeal, emphasizing the absence of material to establish the existence of a dispute before the issuance of the Demand Notice.5. Conclusion: The Tribunal concluded that the appeal lacked merit and was dismissed without any costs. The decision was based on the absence of a genuine pre-existing dispute supported by evidence, as required under the legal framework of the Insolvency & Bankruptcy Code.This detailed analysis covers the issues involved in the judgment, the arguments presented by both parties, legal precedents cited, the decision rationale, and the ultimate conclusion reached by the Tribunal.