Beacon Trusteeship Ltd vs Earthcon Infracon Pvt. Ltd. & Ors

Beacon Trusteeship Ltd. ...Appellant

Vs

Earthcon Infracon Pvt. Ltd. & Anr. ....Respondents Present: For Appellant: Mr. K. Datta, Mr. Ayush Agrawal, Mr. Shikhar Mittal, Ms. Tanvi Sapra, Ms. Pallavi Srivastava, Advocates For Respondents:

ORDER

06.09.2019 M/s Emperos Infrastructure Private Ltd. ('Operational

Creditor') has filed an application under Section 9 of Insolvency and Bankruptcy

Code, 2016 (in short IBC) for initiating Corporate Insolvency Resolution Process

against M/s Earthcon Infracon Private Limited ('Corporate Debtor'). The

application has been admitted by the Adjudicating Authority (National Company

Law Tribunal)- Court No. IV, New Delhi by order dated 23rd August, 2019.

Learned Counsel appearing on behalf of the Appellant submits that the

impugned order dated 23rd August, 2019 was passed by the Adjudicating

Authority because of collusive action on the part of the M/s Emperos

Infrastructure Private Ltd. - 'Operational Creditor' and the M/s - Earthcon

Infracon Private Limited -'Corporate Debtor'. Therefore, according to him the

application under Section 9 of IBC filed by Operational Creditor for initiation of

Corporate Insolvency Resolution Process is with malicious intent for the purpose

Company Appeal(AT)(Insolvency) No. 896 of 2019 Page 1 of 3 other than resolution of insolvency or liquidation. He placed reliance on Form-

V, which is the application under Section 9 IBC, but from the record, we find

that no such case is made out to hold that there was any collusion between the

'Operational Creditor' and the 'Corporate Debtor' or that the Insolvency

Resolution Process was initiated with malicious intent of the 'Operational

Creditor' for the purpose other than Resolution of Insolvency or liquidation.

Learned Counsel for the Appellant submits that the Appellant being a

'Debenture Trustee' of the Corporate Debtor, the matter was not brought to the

notice of the Corporate Debtor. However, aforesaid issue inter-se disputes of the

Corporate Debtor cannot be taken into consideration for admitting or rejecting

an application under Section 9 of IBC. Before filing of application under Section

9 of IBC, a Demand Notice was issued by the Operational Creditor under Section

8(1) of the IBC. On receipt of the notice, the Corporate Debtor has not raised any

objection, nor there is anything on record to suggest a pre-existing dispute raised

before issuance of Demand Notice under Section 8(1) of the IBC. The

Adjudicating Authority had issued notice to the Corporate Debtor before

admission of Application under Section 9 of the IBC, but no objection was raised

by Corporate Debtor showing pre-existing dispute about the claims.

Learned Counsel appearing on behalf of the Appellant submits that the

Demand Notice was issued on 11.06.2019 before that no supply of products or

services were there. But such dispute having not been raised by the Corporate

Debtor before issuance of Demand Notice under Section 8(1) of IBC at belated

stage, the Appellant cannot take such plea.

Company Appeal(AT)(Insolvency) No. 896 of 2019 Page 2 of 3

We find no merit in this appeal and accordingly the appeal is dismissed.

No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] Member (Judicial)

(Kanthi Narahari) Member(Technical) Akc/Sk

Company Appeal(AT)(Insolvency) No. 896 of 2019 Page 3 of 3