Kashyap Infraprojects Private Limited vs Hi-Tech Sweet Water Technologies ...
- CitationCompany Appeal (AT) (Insolvency) No. 33 of 2023
Ratio decidendi
The rule this decision rests on
Under Section 9(5)(ii) of the Insolvency and Bankruptcy Code, 2016, an operational creditor's application is liable to be rejected where the corporate debtor has, within the period under Section 8(2), brought to the operational creditor's notice the existence of a dispute, and that dispute is pre-existing, meaning it existed before receipt of the demand notice. The existence of a pre-existing dispute is established where the defence is a plausible contention requiring further investigation, not a patently feeble legal argument or an unsupported assertion of fact, and is not spurious, hypothetical or illusory; the adjudicating authority need not be satisfied that the defence will succeed, and does not examine its merits beyond this threshold. Where the adjudicating authority finds such a plausible pre-existing dispute, it is not required to undertake detailed investigation or final adjudication of the dispute, since the jurisdiction under Section 9 is summary; the dispute is for determination by a competent forum, and the application must be rejected as not maintainable. WhatsApp messages tendered without satisfying the requirement of Section 65B of the Evidence Act cannot be relied upon to establish the existence of a dispute.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of the Impugned Order dated 02.11.2022 passed by the Adjudicating Authority, National Company Law Tribunal, Ahmedabad Bench-I in CP (IB) No. 349 of 2020]
In the matter of: M/s. Kashyap lnfraprojects Pvt. Ltd. Through its Authorised Signatory (Having CIN U45204GJ2008PTC054465) Registered Office: 502, Liberty Chambers, Tamaliyawad, Nanpura, Surat, Gujarat 395001 ...Appellant Versus
M/s. Hi-Tech Sweet Water Technologies Pvt. Ltd. Through its Managing Director (Having CIN U45205GJ2000PTC037188) Registered Office: 4, Gopal Nagar Nandida Char Rasta, GIDC, Bardoli Surat, Gujarat 394601 ...Respondent Present:
For Appellant : Mr. Arunava Mukherjee and Mr. Nisarg P. Khatri, Advocates.
For Respondent : Mr. Udian Sharma, Mr. Manav Mitra, Mr. Jaitegan Singh, Ms. Aarzoo Aneja, Mr. Akshaya Jeba Kumar, Advocates.
JUDGMENT
(Hybrid Mode)
Per: Barun Mitra, Member (Technical)
The present appeal filed under Section 61 of Insolvency and Bankruptcy
Code 2016 ('IBC' in short) by the Appellant arises out of the Order dated 02.11.2022 (hereinafter referred to as 'Impugned Order') passed by the
Adjudicating Authority (National Company Law Tribunal, Ahmedabad, Bench-
I) in CP (IB) No. 349 of 2020. By the impugned order, the Adjudicating
Authority has rejected the Section 9 application of the Operational Creditor by
holding it as not maintainable due to pre-existing disputes. Aggrieved by the
impugned order, the present Appellant has been preferred by the Operational
Creditor-Appellant.
2. Coming to the brief facts of the case, the Corporate Debtor- M/s Hi-Tech
Sweet Water Technologies Pvt. Ltd. had entered into a contract with the
Government of Bihar to install pump-sets at various locations within the
State. Towards executing the contract, the Corporate Debtor placed purchase
orders of pump-sets on the Operational Creditor-M/s Kashyap Infraprojects
Private Limited. The Operational Creditor had supplied the pump-sets and
raised invoices on the Corporate Debtor. The invoices/bills raised on the
Corporate Debtor having remained unpaid, the Operational Creditor allegedly
reminded the Corporate Debtor on several occasions for payment. Since no
payments were received, the Operational Creditor sent statutory demand
notice under Section 8 of the IBC on 01.09.2020 to the Corporate Debtor.
Since further payments were still not received by the Operational Creditor,
Section 9 application was filed before the Adjudicating Authority on
30.09.2020 which was dismissed by the Adjudicating Authority on
02.11.2022. Assailing the impugned order, the present appeal has been filed
by the Operational Creditor.
Page 2 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023
3. Making his submissions, Shri Arunava Mukherjee, the Ld. Counsel for
the Appellant stated that the Operational Creditor had been supplying the
goods and services to the Corporate Debtor on a regular basis and that pump-
sets and related accessories were supplied after due verification by way of a
third-party inspection. The solar pump-sets were received by the Corporate
Debtor without raising any dispute or objection at the time of delivery of the
said material. Even the bills raised against the consignment of goods were
received by the Corporate Debtor without any dispute. At the time of filing of
the Section 9 application, the aggregate outstanding liability of the Corporate
Debtor was Rs.1.86 crore with Rs. 1.42 cr as principal amount and Rs. 43.87
lakhs towards interest @ 18% per annum. It was submitted that though the
reason for non-payment as attributed by the Corporate Debtor was the
presence of pre-existing disputes, however, the actual reason was that the
Corporate Debtor was not in good financial health and had already been
blacklisted by the Government of Bihar and therefore lacked the capacity to
pay. The Ld. Counsel for the Appellant also submitted that the dispute
mentioned by the Corporate Debtor was not a genuine dispute but was a
created dispute. Submission was also made that there is no genuine
foundation of pre-existing dispute since all the pump sets were supplied after
third party inspection which agency had certified the goods at the time of
dispatch. It was also asserted that though the Adjudicating Authority had
correctly rejected the WhatsApp messages relied upon by the Corporate Debtor
to press evidence towards the existence of pre-existing disputes, but it
committed a mistake in supporting the averment of the Respondent-Corporate
Page 3 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023 Debtor of a pre-existing dispute subsisting between the two parties basis an
email of 07.01.2020 and minutes of a meeting held on 26.01.2021.
4. Refuting the submissions made by the Appellant, Shri Udian Sharma,
the Ld. Counsel for the Respondent submitted that the Corporate Debtor had
sent their reply to the Section 8 demand notice on 18.09.2020 and this Notice
of Dispute clearly articulated the aspect of delayed supply of goods and supply
of defective goods by the Appellant and the consequential adverse impact on
the goodwill and reputation of the Corporate Debtor. Besides raising the
ground of pre-existing dispute, it was asserted the Corporate Debtor had
denied that payments were due and that no amount was payable till the task
of complete and effective installation of the pump-sets was completed. It was
further stated that the Government of Bihar had given the Corporate Debtor
a contract for design, construction, supply, testing and commissioning of 211
mini piped water supply schemes and provisioning of solar power pumps in
various districts of Bihar and for this purpose, they had entered into a
business relationship with the Operational Creditor for supply and installation
of pump-sets. However, the Operational Creditor supplied the said pump-sets
after protracted delay besides supplying defective pump-sets of sub-standard
quality. It was contended that these defects were communicated from time to
time via WhatsApp messages and emails to the Appellant and that these
WhatsApp messages appear at pages 49-110 in their Reply- affidavit before
this Tribunal which fact had also been brought to the attention of Adjudicating
Authority. Besides the WhatsApp messages, it was also categorically informed
Page 4 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023 to the Operational Creditor vide email dated 07.01.2020 that the solar pump-
systems supplied by them were not working and were asked to take necessary
corrective action. However, the Operational Creditor failed to redress the
defects which in turn led to a backlash from the Government of Bihar leading
to termination of the contract and blacklisting of the Corporate Debtor.
Furthermore because of the supply of dysfunctional or non-functional pump
sets, the Government of Bihar had put a stop on the release of payment and
had subjected the release of further payment to replacement of the defective
pump-sets. It was emphatically asserted by the Corporate Debtor that these
WhatsApp messages and email of 07.01.2020 by the Corporate Debtor
highlighting the ongoing dispute preceded the Section 8 demand notice clearly
evidenced pre-existing disputes. Hence the operational debt was neither due
nor payable as it was embroiled in a dispute.
5. Attention was also adverted to the fact that a meeting was held on
26.01.2021 between the representatives of the two parties wherein the
Operational Creditor had agreed to replace the defective pump sets. It was also
pointed out that basis the agreement arrived at the meeting held on
26.01.2021, the Operational Creditor while agreeing to replace the defective
pump sets also agreed to withdraw the Section 9 application filed against the
Corporate Debtor. The Operational Creditor however reneged on the said
agreement compelling the Corporate Debtor to file a Section 95 application
against the Operational Creditor for fraudulent initiation of CIRP.
Page 5 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023
6. We have duly considered the arguments advanced by the Learned
Counsel for both the parties and perused the records carefully.
7. The short point for our consideration is whether there is any infirmity
in the impugned order passed by the Adjudicating Authority dismissing the
Section 9 application on the ground that the operational debt claimed by the
Appellant was embedded with pre-existing disputes.
8. Before we delve into analysing the tenability of the findings of the
Adjudicating Authority, it may be useful and constructive to refer to the
statutory construct of IBC as contained in Sections 8 and 9 of the IBC, we
notice that Section 8 requires the Operational Creditor, on occurrence of a
default by the Corporate Debtor, to deliver a Demand Notice in respect of the
outstanding Operational Debt. Section 8(2) lays down that the Corporate
Debtor within a period of 10 days of the receipt of the Demand Notice would
have to bring to the notice of the Operational Creditor, the existence of dispute,
if any. From a plain reading of the above provision, it is clear that the existence
of dispute and its communication to the Operational Creditor is therefore
statutorily provided for in Section 8. In the present case, it is an undisputed
fact that the demand notice was issued by the Operational Creditor on
01.09.2020 and notice of dispute was raised by the Corporate Debtor on
18.09.2020, marginally beyond the prescribed period of ten days.
9. Now coming to Section 9 of IBC, sub-section (1) thereof provides that if
the Operational Creditor does not receive payment from the Corporate Debtor
or notice of the dispute under Sub-section (2) of Section 8, he may file an
Page 6 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023 Application under Section 9(1) of the Code. It remains an undisputed fact that
the Operational Creditor did not receive any payment from the Corporate
Debtor and chose to file an application under Section 9 of IBC. However,
Section 9(5)(ii) envisages that if a notice of dispute is received by the
Operational Creditor or there is a record of dispute in the Information Utility,
the application is liable to be rejected by the Adjudicating Authority.
10. Given this background of relevant statutory construct of IBC, we now
proceed to see from the facts of the present case whether any notice of
existence of dispute had been raised and, if so, whether there was sufficient
material on record to validate the genuineness of the dispute so raised or
whether the dispute lacked plausibility and was contrived to evade the liability
to pay the outstanding debt.
11. Before we deep-dive into the facts of the case and come to our analysis,
we would like to bear in mind the guiding principles laid down by the Hon'ble
Supreme Court in Mobilox Innovations Private Limited v. Kirusa Software
Private Limited in Civil Appeal No. 9405 of 2017. It is relevant to refer to
paras 33, 51 and 56 of the said judgment which is extracted as hereunder:
"33............What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be preexisting i.e. it must exist before the receipt of the demand notice or invoice, as the case maybe. In case the unpaid operational debt has been repaid, the corporate debtor shall within a period of the self-same 10 days sent and attested copy of the record of the electronic transfer of the unpaid amount from the bank account of the corporate debtor or send an attested copy of the record that an operational creditor has encashed a cheque or otherwise received payment from the
Page 7 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023 corporate debt [Section 8(2) (b)]. It is only if, after the expiry of the period of the said 10 days, the operational creditor does not either receive payment from the corporate debtor or notice of dispute, that the operational creditor may trigger the insolvency process by filing an application before the adjudicating authority under Sections 9(1) and 9(2).........
****** ***** *****
51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application."
****** ***** *****
56. Going by the aforesaid 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."
Page 8 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023
12. It is the case of the Respondent that the payments were not due as the
Appellant had not been able to supply and install the pump-sets within time
period allowed by the Government of Bihar in terms of the contract at the
identified locations as was required of them. The Appellant was well aware of
the stipulated time-period including the extension allowed by the Government
of Bihar and the instances of delayed deliveries had been conveyed from time
to time over WhatsApp messages exchanged between the representatives of
two parties. Having failed to discharge their obligations, it is the case of the
Respondent that the debt was neither due nor payable besides there being
pre-existing dispute arising out of delayed supply of pump-sets which were
also faulty and defective and that this aspect was adequately highlighted in
their reply to the Demand notice.
13. Given this backdrop, it will be useful to find out how the Adjudicating
Authority has considered the spectrum of facts to arrive at the conclusion that
there existed pre-existing disputes. We notice that at paragraph 5 of the
impugned order, the Adjudicating Authority has not taken into cognizance of
the WhatsApp conversations to constitute evidence of pre-existing dispute on
the ground that there was no authenticity established as such that these
messages were actually exchanged between the authorised representatives of
both the parties.
14. While it cannot be denied that use of WhatsApp as a communication
tool is a prevalent mode amongst corporate entities, be that as it may, it is
well settled that electronic records including WhatsApp cannot be admitted as
Page 9 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023 evidence unless they meet the requirement outlined in section 65B of the
Evidence Act. Prima facie, the Adjudicating Authority cannot be faulted for
having exercised caution in not taking any informed decision on the issue of
whether these messages evidenced pre-existing disputes by merely relying on
the credibility of these WhatsApp messages.
15. The Adjudicating Authority has however come to the conclusion at
paragraph 6 of the impugned order that there was a pre-existing dispute on
the basis of an email dated 07.01.2020 which had been sent by Corporate
Debtor to the Operational Creditor. At this juncture, it may be worthwhile
perusing the two emails 07.01.2020 sent by the Corporate Debtor to the
Appellant which are as extracted hereunder:
"Dear Hirenbhai, ....
The major problem with Antras system is that its performance days and hours are very less as compared to system installed by other companies as told by commissioner, engineer in chief, executive engineer and other officers of division. When we go for billing they directly tell us to replace the system giving the above mentioned reason.
Headquarter has released a guideline for all contractors that motor should run for 8 hours. As far we have observed lubi system performance hours and days are better than antras system. On days and condition when antras system do not give water, lubi system does. None of the lubi system has required any maintenance till date Antras system do not perform at all when issue of shadow is there but lubi system does Here are few sites are mentioning where antras system is placed and we are facing problem ......"
Page 10 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023 Second email "Dear Hirenbhai, Kindly find herewith the attachment.
1.Villagers, mukhiyas and sarpanch have written letter to executive engg taking concerned DM and PHED commissioner in each our solar pump system is ineffective as compared to other company's system bcoz they r not able to deliver.- water up to 8 hrs in winters well as in very high temperatures of summer ... due to which they are not ready to bill our sites .. Engineer in chief has reciprocated the same views...
2.Many motor used to become inoperative from time to time but of late many controllers are also not operating properly and some NEW controllers are faulty too.
3.Department is advising to go for another solar pump system. Major reason of delay in billing:-
1. Our solar system not working properly.
2. Pump and controller fail randomly at some sites, for ex- Kumna sit's pump not working currently.
3. Departments ignore to do running bills, they wants to bill only successfully completed sites.
Earlier we also share many Complaints but not such Proper Solutions given from your dues to Currently we have Big Big with Department ..
IN FIRST SOME SITES STRUCTURE CONSTRUCT IN WRONG DIRECTIONS BUT WE HAVE ARRANGED STRUCTURES FOR THAT AND INSTALLED SOLAR PANELS IN CORRECT DIRECTIONS THAT IMAGE ALSO ATIACHED HERE WITH.
MOST ISSUES POSTED IN WHATSUP GROUPS BY OUR GROUND LEVEL STAFFS TIME TO TIME INTIMATE TO RECTIFIES OUR PROBLEM HIRENBHAI PLEASE LOOK ISSUES IN SERIOUS MANNER DEPUTE YOUR STAFF URGENT BASIS AND SOLVE ISSUES.
Thanks Regards, BHADRESH M KAPDI."
(Emphasis supplied)
Page 11 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023
16. A plain reading of the above two emails clearly highlight that the solar
system based pump-sets were not working satisfactorily and that the pumps
and the controllers failed randomly at various locations. By this email, the
Operational Creditor was also informed by the Corporate Debtor that
Government of Bihar was agreeable to release of payment only on successful
completion of the commissioning and installation of the pump sets. The
Adjudicating Authority has noted that this email had been sent to the
Operational Creditor by the Corporate Debtor prior to the Section 8 demand
notice dated 01.09.2020 sent by the Operational Creditor and hence the
dispute raised in the email fell in the category of pre-existing dispute. The tone
and tenor of the emails exchanged between the two parties clearly manifest
existence of dispute which antedates Section 8 demand notice. The
Adjudicating Authority also concluded that it was beyond the remit of
Adjudicating Authority to enquire into such disputes and that the dispute
needed to be investigated by a proper form and on this ground did not
entertain the Section 9 application.
17. The counter-defence taken by the Ld Counsel of the Appellant was that
this was in the nature of a dispute created by the Corporate Debtor and not a
genuine dispute. In support of their contention, it was pointed out that the
supply of goods was duly certified by a third-party inspection report which
have been placed on record.
Page 12 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023
18. We have looked into the third-party inspection reports which have been
placed at Annexure A-12 at pages 158 -196 of Appeal Paper Book ('APB' in
short). On taking a close look, we notice that the third-party inspection reports
were not carried out at the time of installation of the pump-sets but at the
stage when the pump-sets were dispatched in boxed condition. The remark
contained in these inspection report only mentions that "inspected quantity is
passed/clear for dispatch". Therefore, it becomes clear that these inspection
reports were not given after installation and testing of the pump-sets in
running condition. The inspection reports were therefore relevant only to verify
the proof of physical dispatch of pump-sets but did not certify the actual
functioning of pump sets after installation. Further, nomenclating this
inspection report to be a third-party inspection unilaterally was also
questioned by the Ld Counsel of the Respondent as there is no document on
record which showed that the agency carrying out the said inspection or the
modalities of inspection were agreed upon by all the three parties viz.
Operational Creditor, Corporate Debtor and the Government of Bihar. Basis
the third-party inspection report submitted unilaterally by the Operational
Creditor to claim that the goods supplied were not defective also does not
impress us to accept the plea of the Operational Creditor that the pump-sets
supplied were defect free and that Corporate Debtor was only creating a
dispute to avoid the liability to pay. In the present factual matrix, the defence
raised by the Corporate Debtor therefore cannot be held to be moonshine,
spurious, hypothetical or illusory.
Page 13 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023
19. We have also seen the order by the Government of Bihar on 29.05.2020
as placed at pages 197-199 of APB addressed to the Corporate Debtor
blacklisting the firm and forfeiture of its security deposit. The said order
clearly states that as per the agreement, the period of completion of the
scheme of mini water supply scheme based on electric pump was to end on
23.04.2018. On the request of the Corporate Debtor, the work was extended
for the first time till 31.12.2019 and given further extension till 30.04.2020
but with penalty. However, post review of the work status, it was found that
the work was completed only at 16 sites; that work remained in progress at
30 sites and no work had started at 54 sites. Hence the contract of the
Corporate Debtor was cancelled and the security amount forfeited besides
blacklisting the company.
20. That the dispute had continued to fester is also borne out by the fact
that in a meeting held on 26.01.2021 between the representatives of the two
parties, the Operational Creditor had agreed to replace the defective pump sets
to the satisfaction of the Government of Bihar which was the end-user. The
minutes of the meeting as communicated to the Appellant by the Corporate
Debtor is as extracted hereunder:
"Subject: Minutes of Meeting with Mr. Hiren Bhavsar Kashyap Infra and Mr. Vljay Shah HI Tech Sweet Water
Minutes of Meeting at Bardoli between Mr. Hiren Bhavsar (Kashyap Infra- Director), Mr. Krunal (Kashyap Infra -Engineer), Mr. Mehul (Duke Pump) and Mr. Vijay Shah ( Hi Tech Sweet Water), Mr. Bhadresh Kapdi (Hi Tech Sweet Water), Mr. Piyush Nemani (Vi mal agro) regarding Solar
Page 14 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023 Based Water Distribution System of Bihar Districts - Dated 26.01.2021- 5.20 PM Points agreed by Mr. Hiren Bhavsar (Kashyap Infra) as bellow;
1) All Pumps and Control Panel replace in lot of 10 as per earlier Installed in Various Districts of Bihar.
2) Mr. Hiren Bhavsar agree to Replace all sites handover in Proper Working condition as per Tender Conditions they should satisfied Government authority of Concern District.
3) Mr. Vijay Shah agree to give Payment after government official Concern District release payment of Proper working Solar Pumping Systems 25% of District payment release.
4) Mr. Hiren Bhavsar agree to replace all installed I unused Pump and Control give in proper Working Condition and Hi Tech will release every lot payment receipt from Govt. Department Concern District and hold 20,000/- per Site of unuse Pump and Control.
5) It was admitted by Mr. Hiren Bhavsar that the case was done at the behest of Mehul (Duke Pump)."
(Emphasis supplied)
21. It is clear from the agreement arrived at the meeting held on 26.01.2021
that the Operational Creditor had agreed to replace the defective pump sets
and meet the standards as per the tender conditions which is a clear
admission on their part for having been unable to discharge their obligations
up to the expectations of the tender specifications. The Appellant has however
contended that these minutes indicate that the dispute had come to an end
and stood amicably settled. We cannot be unmindful of the fact that this
meeting was post the issue of demand notice and in factoring the presence of
pre-existing disputes we need to only find out if the disputes were subsisting
at the time of filing the notice of dispute. Furthermore, merely because a
meeting was held between the two parties to overcome the shortcomings in
the meeting the obligations of supply and installation of pump-sets cannot be
taken to imply that all disputes between the parties had subsided without the
Page 15 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023 parties being at ad idem on whether the obligations stood discharged on a
mutually satisfactory basis.
22. We find that the Adjudicating Authority has concluded at paragraph 7 of
the impugned order that the dispute which existed between the Operational
Creditor and the Corporate Debtor prior to the demand notice about the quality
of the pump sets supplied requires detailed inquiry and investigation by the
proper forum and that the Adjudicating Authority is not that forum.
23. To our minds, the Adjudicating Authority did not commit any error in
returning this finding keeping in mind that IBC bestows only summary
jurisdiction upon the Adjudicating Authority. Once plausibility of a pre-existing
dispute is noticed, it is not required of the Adjudicating Authority to make
further detailed investigation. What has to be looked into is whether the defence
raises a dispute which needs further adjudication by a competent court. It is
well settled that in a Section 9 proceeding, the Adjudicating Authority is not to
enter into final adjudication with regard to existence of dispute between the
parties regarding the operational debt. There was no requirement for the
Adjudicating Authority in the present case to go under the skin of dispute and
therefore the Adjudicating Authority rightly held that the Section 9 application
was not maintainable in the present factual matrix.
24. In sum, the defence taken by the Appellant that the Corporate Debtor was
trying to manufacture disputes fails to succeed. The defence raised by the
Corporate Debtor cannot be held to be moonshine, spurious, hypothetical or
illusory. For such disputed operational debt, Section 9 proceeding under IBC
Page 16 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023 cannot be initiated at the instance of the Operational Creditor. The Adjudicating
Authority has therefore correctly noted that the conditions laid down in Section
9 having not been fulfilled, the application deserved to be rejected. We find no
good reasons to disagree with the findings of the Adjudicating Authority.
25. Considering the overall facts and circumstance of the present case, and in
view of the foregoing discussion, we are satisfied that the Adjudicating Authority
did not commit any error in rejecting the Section 9 Application filed by the
Appellant. There is no merit in the Appeal. Appeal is dismissed. We however
make it clear that it will remain open to the Appellant to resort to other remedies
that may be available to it under any other law. No order as to costs.
[Justice Rakesh Kumar Jain] Member (Judicial)
[Barun Mitra] Member (Technical)
[Indevar Pandey] Member (Technical)
Place: New Delhi Date: 27.11.2024
Abdul/ Harleen
Page 17 of 17 Company Appeal (AT) (Insolvency) No. 33 of 2023
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