M/S Jai Balaji Industries vs D.K. Mohanty

2021 INSC 590 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5899 of 2021

M/S. JAI BALAJI INDUSTRIES … Appellant(s)

Versus

D.K. MOHANTY & ANR. … Respondent(s)

WITH CIVIL APPEAL No. 5904 of 2021

ORDER

1. By way of these appeals under Section 62 of Insolvency and

Bankruptcy Code, 2016,1 the appellant, said to be an operational creditor

of the respondent No. 2 company, seeks to question the common order

dated 17.08.2021 passed by the National Company Law Appellate

Tribunal, Principal Bench, New Delhi,2 in Company Appeal (AT)

(Insolvency) No. 888/2020 and Company Appeal (AT) (Insolvency) No.

889/2020, whereby the Appellate Tribunal, after holding that the

operational debt claimed by the appellant was not free from pre-existing

dispute, set aside the orders dated 30.09.2020 passed by the National

Company Law Tribunal, Kolkata Bench, Kolkata,3 in admitting the

1 Hereinafter also referred to as ‘IBC’ or ‘the Code’. 2 Hereinafter also referred to as ‘NCLAT’ or ‘the Appellate Tribunal’. 3 Hereinafter also referred to as ‘NCLT’ or ‘the Tribunal’.

1 application made by the appellant for initiation of Corporate Insolvency

Resolution Process4 concerning the respondent No. 2 company.

2. Having regard to the questions sought to be raised, elaboration on

all the factual aspects pertaining to the claim of the appellant and the

dispute raised by the respondents is not necessary. Only a brief reference

to the relevant background would suffice.

3. The appellant M/s. Jai Balaji Industries is engaged in the business

of manufacturing and supply of iron and steel products, having its plants

in the States of West Bengal and Chhattisgarh. 5 The respondent No. 2

Orissa Minerals Development Company Limited is a company engaged in

the business of selling iron ore, having its mines in the State of Orissa. 6

The respondent No. 1 is the Managing Director of this company. 3.1. The appellant and the respondents entered into two

Memorandums of Understanding7 on 13.08.2003 and 11.03.2004,

whereby the respondent No. 2 agreed to supply, respectively, 1 lakh and

7 lakh metric tons of iron ore per month to the appellant. A dispute ensued

between the parties, as regards the requisite supply and payment,

leading the appellant to invoke the arbitration clause and the matter was

taken up in arbitration proceedings.

4. Two separate arbitral awards dated 22.02.2010 and 15.02.2010

were passed in relation to the respective MOUs in favour of the appellant

whereunder the respondent company was held liable to make payment of

Rs. 4.44 crores and Rs. 2.79 crores respectively.

4 ‘CIRP’ for short.

5 The appellant is also referred hereinafter as ‘the operational creditor’, as per the context. 6 The respondent No. 2 company is also referred hereinafter as ‘the respondent company’ or ‘the corporate debtor’, as per the context.

7 ‘MOU’ for short.

2 4.1. The respondent company challenged the legality and validity of

the awards so made by way of petitions under Section 34 of the

Arbitration and Conciliation Act, 1996. 8 These petitions were, however,

dismissed by the District Court, Barasat by its orders dated 27.02.20129

and 29.02.201210 respectively. These orders were challenged by the

respondent company by way of two appeals 11 under Section 37 of the Act

of 1996 before the High Court of Calcutta on 07.08.2012. The appeals

remained pending for long but, on 22.11.2019, the same were dismissed

in default because of non-appearance of the appellant therein (i.e., the

respondent company).

4.2. On 17.12.2019, the respondent company moved respective

applications for restoration of appeals;12 and these applications were

allowed by the High Court on 02.03.2020, after finding sufficient cause for

non-appearance on the date of hearing. Consequently, both the appeals

under Section 37 of the Act of 1996 stood revived and are said to be

pending yet.

5. In the meantime and before such restoration of appeals, the

appellant sent two separate demand notices under Section 8 of the Code

[read with Rule 5 of the Insolvency and Bankruptcy Code (Application to

Adjudicating Authority) Rules, 2016] to the respondent company on

14.02.2020, claiming operational debts to the tune of Rs. 7,75,13,684/-

8 Hereinafter also referred to as ‘the Act of 1996’.

9 In Miscellaneous Case No. 159 of 2010 pertaining to MOU dated 13.08.2003. 10 In Miscellaneous Case No. 173 of 2010 pertaining to MOU dated 11.03.2004. 11 Being FMA 941 of 2012 pertaining to MOU dated 13.08.2003 and FMA 939 of 2012 pertaining to MOU dated 11.03.2004.

12 Being CAN No. 12338 of 2019 in FMA 941 of 2012 and CAN No. 12333 of 2019 in FMA 939 of 2012.

3 and Rs. 5,62,01,258/- under the respective arbitral awards, for the

appeals having been dismissed by the High Court.

5.1. In terms of Section 8(2)(a) of the Code, the respondent company

sent its replies to the demand notices on 25.02.2020, asserting, inter alia,

that there existed a dispute and the matter was pending in arbitration

proceedings, which pre-dated the receipt of demand notice.

Substantiating this assertion, the respondent company stated that the

applications for restoration of appeals were pending in the High Court,

which were filed much before the receipt of demand notices and with

advance notice to the appellant. Thus, the respondent company asserted,

within 10 days of service of the demand notices, that the matter of debt

owed was sub judice and no operational debt was payable to the

appellant.

6. Notwithstanding the replies so sent by the respondent company,

the appellant proceeded to move the National Company Law Tribunal,

Kolkata Bench, Kolkata, seeking initiation of Corporate Insolvency

Resolution Process against the respondent company for non-payment of

the aforementioned operational debts and filed two applications under

Section 9 of the Code.13 It would be apposite to indicate at this stage itself

that NCLAT took note of the fact that such applications, though sworn on

29.02.2020, were filed only on 02.03.2020; however, NCLT had

proceeded on the assumption that the applications were filed on

29.02.2020. As would be noticed hereafter later, the date of filing of such

applications under Section 9 of the Code has its own bearing in the 13 Being CP (IB) No. 676/KB/2020 and CP (IB) No. 688/KB/2020 respectively.

4 matter because the aforesaid appeals of the respondent company under

Section 37 of the Act of 1996 were restored by the High Court on

02.03.2020.

7. The Adjudicating Authority, i.e., NCLT, dealt with the applications

so made by the appellant under Section 9 of the Code by its common

order dated 30.09.2020; and proceeded to examine the question as to

whether the appeals under Section 37 of the Act of 1996 were pending on

the day the operational debt owed to the appellant became due. 7.1. The NCLT took the view that on the day the appellant served

demand notices to the respondent company under Section 8 of the Code

and on the date of filing of applications under Section 9 of the Code, no

proceedings were pending in challenge to the arbitral awards and hence,

no dispute as to the debt owed to the appellant was existing on the

relevant dates. The NCLT further observed that although the High Court

allowed the applications for restoration of appeals under Section 37 of the

Act of 1996, this was belatedly done, only on 02.03.2020. The relevant

observations of NCLT could be usefully extracted as under: -

“7…..On 14.02.2020, the Operational Creditor sent Corporate Debtor notice under Section 8 of Insolvency and Bankruptcy Code, 2016. It was received by the Corporate Debtor on 18/2/2020 and Corporate Debtor replied vide letter dated 25.02.2020. This application to initiate CIRP of the Corporate Debtor has been filed by the Operational Creditor on 29.02.2020. On that day, no Appeal under Section 37 of A & C Act, 1996 was pending because the Hon'ble High Court restored the Appeal on 02.03.2020.”

7.2. The NCLT, thereafter, referred to the requirements of Section 9(5)

(ii)(d) of the Code and meaning of the expression “dispute” as per Section

5(6) of the Code, and observed as under: -

5 “8….From the plain reading of un-disputed facts in this proceeding, it is clear that on the date on which the Corporate Debtor was served with demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 or on the date on which the application is filed against the Corporate Debtor, no arbitration proceedings was pending challenging the award.”

7.3. The NCLT also referred to the decision of this Court in the case of

K. Kishan v. Vijay Nirman Company Pvt. Ltd.: (2018) 17 SCC 662 and

observed that the enunciations therein rather operated in favour of the

operational creditor, because the operational debt became due and

payable when the award was confirmed by the District Judge; and even

though an appeal was filed by the corporate debtor, the same was

dismissed in default; and notice was given by the creditor only 90 days

after dismissal of the appeal. The NCLT even sensed mala fide in the

corporate debtor’s application for restoration and observed that its officers

were using the proceedings in law either to delay or to avoid the

legitimate dues. The NCLT, inter alia, observed as under: -

“10. It has been held by the Apex Court that if it is shown that the application under Section 34 of A & C Act, 1996 is pending or Appeal under Section 37 of the Act is pending, then insolvency proceedings cannot be initiated. In this case, on the date of filing of this application under Section 9 of Insolvency and Bankruptcy Code, 2016 i.e on 29.02.2020, no proceeding under Section 34 or Appeal under Section 37 of the Act was then pending against the Operational Creditor (although restoration application of Appeal was pending). So on the facts, we hold that above ruling is in favour of the Operational Creditor rather than the Corporate Debtor. In short, Operational debt become due and payable on 29.02.2012 i.e on the date of which the Learned District Judge confirmed the award under Section 34 of A & C Act. The Corporate Debtor filed Appeal under Section 37 of the Act. It was dismissed in default. 90 days thereafter, on 14.02.2020, Operational Creditor gave the Corporate Debtor notice under Section 9 of the Insolvency and Bankruptcy Code, 2016. On 28.02.2020 (sic).

6 11. What we gathered from the above facts is that the operational creditor sent a demand notice three months after the Corporate debtor’s appeal was dismissed by Hon’ble high Court. As soon as the Corporate Debtor received the demand notice, its officers swung into action and get the appeal restored. Meantime, the operational creditor had filed this application. It appears from record that the officers of the Corporate Debtor using the proceedings under the law either to delay or to avoid the legitimate dues of the Corporate Debtor on one or the other ground.”

7.4. In view of the above, the NCLT held that the corporate debtor had

committed default in payment of operational debts in spite of the receipt

of demand notice; and that there was no dispute pending, by way of

arbitral proceedings or otherwise, on the date on which default occurred

or the date on which application was filed to initiate CIRP of the corporate

debtor. With these observations, the NCLT admitted the applications

made by the appellant under Section 9 of the Code in its capacity as an

operational creditor; initiated CIRP in relation to the respondent company;

declared moratorium; appointed Interim Resolution Professional; and

issued further consequential directions.

8. Being aggrieved by the orders so passed by the Adjudicating

Authority (NCLT), the present respondents preferred respective appeals

before the Appellate Tribunal (NCLAT) under Section 61 of the Code

contending, inter alia, that the applications under Section 9 of the Code

were actually filed only on 02.03.2020 but, on that date, the appeals had

been restored by the High Court and such restoration related back to the

date of filing of appeals. On the other hand, it was contended on behalf of

the appellant that on the date of issuance of the demand notice

7 (14.02.2020), no arbitration proceedings were pending as the appeals

were restored only on 02.03.2020 and, therefore, the Adjudicating

Authority had rightly admitted the applications for CIRP in the present

case.

8.1. The core of rival contentions came to be noticed by the Appellate

Tribunal in the following words: -

“6. Subsequently, the Application for restoration, filed on 17.12.2019 was restored on 02.03.2020. It is the case of the ‘Operational Creditor’ that ‘as on the date of the issuance of the Demand Notice’ under Section 8 of the Code i.e. on 14.02.2020 there was no Arbitration proceeding pending, as the Appeal under Section 37 was restored only on 02.03.2020. As against these submissions, Learned Solicitor General representing the ‘Corporate Debtor’ submitted that once the Application for restoration is allowed, it relates back to the original date of filing. It is also submitted that the Section 9 Application was affirmed on 29.02.2020 but was actually filed on 02.03.2020 and therefore as on the date of filing of the Application, the Appeal was already restored.”

8.2. The NCLAT referred to the decision of this Court in the case of

Mobilox Innovations Pvt. Ltd. v. Kirusa Software Pvt. Ltd.: (2018) 1

SCC 353 and, in keeping with the principles enunciated therein,

proceeded to examine as to whether there was a pre-existing dispute

concerning the debt in question on the date of receipt of demand notice.

Thereafter, NCLAT referred to the decision of this Court in the case of

Vareed Jacob v. Sosamma Geevarghese & Ors.: (2004) 6 SCC 378, to

observe that as per the view of the majority therein, once an appeal is

restored to its original number, the interlocutory orders therein stand

revived unless otherwise directed. By applying these principles, the

8 NCLAT held that once the appeal under Section 37 of the Act of 1996 was

restored, it related back to the original date of filing in the following words:

-

“9. What can be gleaned from the majority decision is that upon restoration of Appeal to its original number, the Appellant is restored to the position when the Court has initially dismissed the Appeal for default, unless the Court expressly or by implication excludes the operation of any Orders passed during the period between the dismissal of the restoration.

10. The minority view relied upon by the Learned Counsel appearing for ‘Operational Creditor’ is not applicable to this case.

The binding Judicial Precedent is the view taken by the majority. That constitutes the Rule of the Court. Having regard to the interpretation of the ratio laid down in the aforenoted Judgement that once an Appeal is restored to its original number, the fact that Interlocutory Orders would stand revived unless otherwise directed, further strengthens the case of the Appellant herein. We are of the considered view that the ratio of majority view of ‘Vareed Jacob’ (Supra) is applicable to the facts of this case and hence, we hold that once an Appeal under Section 37 of the A&C Act, 1996, is restored it relates back to the original date of filing.”

8.3. A question regarding effect of pendency of the proceedings for

execution of award also cropped up, to which, the NCLAT observed that

the execution would come into picture if the appeals under Section 37

had been decided; and ‘money recovery’ and ‘triggering of insolvency’

were not parallel proceedings. The NCLAT also observed that, in fact, IBC

discourages recovery proceedings; and the practice of using this Code

towards execution of decree or money recovery is rather deprecated.

8.4. Moving on, the Appellate Tribunal referred to Section 8 of the

Code and observed that the requirement was to see as to whether there

existed a dispute or record of pendency of the suit or arbitration

9 proceedings; and with reference to the facts of the present case,

construed that a dispute was in existence prior to the issuance of demand

notices. It was also observed that the applications for restoration were

filed with advance notice to the operational creditor. Having said that, the

Appellate Tribunal referred to the enunciations of this Court in the case of

Mobilox Innovations and K. Kishan (supra) and held that it was a clear

case of a pre-existing dispute between the parties prior to the issuance of

demand notice and hence, the operational debt cannot be said to be an

undisputed one. The relevant part of observations and findings of the

Appellate Tribunal (NCLAT) in its impugned common order dated

17.08.2021 could be usefully extracted as under: -

“15. Section 8(2)(a) provides that Existence of a Dispute, [if any, or] record of the pendency of the suit or Arbitration Proceedings filed before the receipt of such Notice or invoice in relation to such Dispute. At the outset, what has to be seen is ‘whether there is any Existence of Dispute’, ‘if any or’ record of the pendency of the suit or Arbitration Proceedings. In the instant case, it is an admitted fact by both the parties that disputes arose way back in the year 2003 and 2004, and based on the terms of MoU entered into, the ‘Operational Creditor’ themselves invoked the Arbitration Proceedings. Both the Arbitral Awards were assailed by the ‘Corporate Debtor’ under Section 34 of A&C Act, 1996 and were dismissed by separate Orders dated 27.02.2012 and 29.02.2012 respectively. The Appeals preferred by the ‘Corporate Debtor’ under Section 37 of A&C Act, 1996, stood pending till 22.11.2019 on which date they were dismissed for non-prosecution. So even if 22.11.2019 is taken as the date of NPA as contended by the Learned Counsel for the ‘Operational Creditor’, the fact remains that till that date there is an ongoing Dispute. It can be safely construed that there was a ‘Dispute’ in Existence prior to the issuance of the Demand Notice. Subsequently, the Appeal under Section 37 was restored on 02.03.2020. The Application for restoration CAN No. 12333 of 2019 was filed by the ‘Corporate Debtor’ on 17.12.2019 with an advance Notice to the ‘Operational Creditor’. Thereafter the Demand Notice was issued on 14.02.2020. The Application was

10 filed on 02.03.2020. We have already observed that upon restoration, the Appeal relates back to the original date of filing and therefore we note that there was a Pre-Existing Dispute prior to the date of issuance of the Demand Notice.

16. To view it in a narrow compass and interpret Section 8(2)

(a) that an Arbitral Award ought to be pending as on the exact date of the issuance of the Demand Notice, amounts to mistaking/misconstruing the said Section. The Hon’ble Supreme Court in ‘Mobilox Innovations Pvt. Ltd.’ (Supra) has clearly laid down that ‘the test for determination for the Adjudicating Authority is to see at the stage of Admitting/rejecting the Application 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’. It is observed that the Adjudicating Authority does not need to be satisfied whether the defence is likely to succeed so long as a Dispute truly Exists in fact and is not spurious, hypothetical or illusory. In the instant case, the Existence of a ‘Dispute’ is evident in the Arbitration Proceedings pending from 2004 till 29.11.2019…

17. The ratio in the aforenoted Judgement is squarely applicable to the fact of the instant case as it can be seen from the record that the entire basis for the Section 8 Notice is that the Appeals preferred by the ‘Corporate Debtor’ under Section 37 of the A&C Act, 1996 were dismissed for default on 22.11.2019…

18. There is a possibility that the ‘Corporate Debtor’ may succeed on any claim or part of the claim. Hence, it is apposite to observe that the ‘Operational Debt’ herein, could not be said to be an ‘undisputed debt’. Following the ratio in ‘Mobilox Innovations Pvt. Ltd.’ (Supra) wherein it was inter alia held that so long as a dispute truly exists in fact and is not spurious, the Adjudicating Authority ought to have dismissed the Application. Hence, for all the aforenoted reasons these Appeals are allowed and the Impugned Order is set aside. No Order as to costs.” (emphasis in the original)

9. Seeking to question the aforesaid common order dated

17.08.2021, the appellant (operational creditor) has preferred these

appeals under Section 62 of the Code.

9.1. It is strenuously contended on behalf of the appellant that to

operate against maintainability of an application by the operational

11 creditor for initiation of CIRP under Section 9 of the Code, there ought to

be a dispute existing prior to the service of demand notice. It is submitted

that as per the plain language of Section 8(2)(a) of the Code, the dispute,

as defined in Section 5(6) of the Code, must strictly be existing as a

matter of fact on the date of service of demand notice, as explained and

laid down in Mobilox Innovations (supra). The contention is that any

later development in relation to the claim under the demand notice cannot

have a bearing on an adjudication of the application filed under Section 9

of the Code. While emphasising on the phraseology of Section 8(2)(a) of

the Code, it is contended that the provision specifically seeks to negate

and nullify the effect of any post-facto development with respect to the

default amount for which demand notice had been issued. It is submitted

that in the present case, subsequent restoration of appeal under Section

37 of the Act of 1996, post service of demand notice, cannot have any

bearing on the maintainability of the application filed under Section 9 of

the Code.

9.2. As regards the doctrine of ‘relation back’, it is contended that this

doctrine cannot be applied universally and, in any case, cannot be

applied in adjudication of an application filed under Section 9 of the Code.

It is also contended that NCLAT has wrongly relied upon the majority

judgment in the case of Vareed Jacob (supra), wherein it was held on the

facts of the case that the interim order was revived automatically upon

restoration of the suit; and has failed to appreciate the other observations

12 in the majority judgment itself, positing that all interim orders cannot be

put on the same pedestal. It is further submitted that the minority view in

Vareed Jacob (supra), dealing with the issue pertaining to the legal

treatment of rights accrued in the interregnum, i.e., between dismissal of

proceedings in default and restoration, could not have been ignored for

the reason that such an issue was not dealt with by the majority

judgment. Further, a decision of this Court in the case of Addagada

Raghavamma & Anr. v. Addagada Chenchamma & Anr.: AIR 1964 SC

136 has also been referred, to submit that the doctrine of relation back

cannot be invoked without limitations, and retroactivity must not affect any

vested rights.

10. Having given thoughtful consideration to the submissions made on

behalf of the appellant and having examined the record with reference to

the law applicable, we are clearly of the view that these appeals remain

totally bereft of substance and do not merit admission.

11. In comprehension of the relevant background aspects of the

present case, it is clear that the appellant asserts itself to be an

operational creditor, for the reason of having a claim against the

respondent company, which was the subject matter of arbitration

proceedings and led to the arbitral awards in its favour. According to the

appellant, challenge to arbitral awards came to an end with dismissal of

appeals filed under Section 37 of the Act of 1996 and hence, the notices

were sent demanding payment of the amount due, for which the

13 corporate debtor was in default; and any event occurring post issuance of

demand notices cannot have any bearing on adjudication of the

applications moved for initiation of CIRP.

12. We are impelled to observe at the outset that the entire approach

of the appellant seems to be founded on a basic misconception that the

Code has provided another avenue for enforcing money recovery by a

creditor against the corporate debtor; and the submissions on behalf of

the appellant, seeking to maintain its application under Section 9 of the

Code for initiation of CIRP against the respondent company, proceed

squarely contrary to the elementary principles concerning the object and

purpose of the Insolvency and Bankruptcy Code, 2016. In the case of

Swiss Ribbons Private Limited & Anr. v. Union of India & Ors.: (2019)

4 SCC 17, this Court has highlighted the fact that in its scheme and

framework, the Code is a beneficial legislation to put the corporate debtor

on its feet, and not a mere recovery legislation for the creditors. This

Court has observed, -

“28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests…..” (underlining supplied for emphasis)

14 12.1. Moreover, as we shall see in necessary details a little later, this

Court has consistently made it clear that an operational creditor cannot

use the Code for extraneous considerations or as a substitute for debt

enforcement procedures; and the object of the Code is to allow the

insolvency process against the corporate debtor to be taken up at the

instance of an operational creditor only in the clear case, where a real

dispute between the parties as to the alleged debt does not exist.

13. As regards legal principles applicable to the questions at hand, we

may usefully refer to the relevant provisions of law before adverting to the

decisions of this Court.

13.1. Part II of the Code deals with insolvency resolution and liquidation

of corporate persons and Chapter II thereof deals with Corporate

Insolvency Resolution Process. The root provisions relating to insolvency

resolution by operational creditor are contained in Sections 8 and 9 of the

Code.

The inclusive definition of the expression “dispute”, for the

purpose of Part II, as contained in Section 5(6) of the Code, reads as

under: -

“5(6). “dispute” includes a suit or arbitration proceedings relating to—

(a) the existence of the amount of debt;

(b) the quality of goods or service; or

(c) the breach of a representation or warranty;”

15 The relevant provisions concerning insolvency resolution by an

operational creditor, as contained in Sections 8 and 9 of the Code, read

as under: -

“8. Insolvency resolution by operational creditor. – (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor-

(a) existence of a dispute, [if any, or] 14 record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute;

(b) the payment of unpaid operational debt-

(i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or

(ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor.

Explanation.- For the purposes of this section, a “demand notice” means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred.

9. Application for initiation of corporate insolvency resolution process by operational creditor. – (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process.

(2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed.

14 The expression ‘if any, or” as now occurring in Section 8 (2) (a) of the Code was substituted by Act 26 of 2018 w.r.e.f. 06.06.2018 for the earlier expression “if any, and”. However, even before this amendment, this Court, in the case of Mobilox Innovations (supra) read down “and” as “or”, keeping in mind the legislative intent behind this provision.

16 (3) The operational creditor shall, along with the application furnish-

(a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor;

(b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt;

(c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available;

(d) a copy of any record with information utility confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available; and

(e) any other proof confirming that there is no payment of an unpaid operational debt by the corporate debtor or such other information, as may be prescribed.

(4) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional. (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order-

(i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,-

(a) the application made under sub-section (2) is complete;

(b) there is no payment of the unpaid operational debt;

(c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor;

(d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and

(e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any.

(ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if-

(a) the application made under sub-section (2) is incomplete;

(b) there has been payment of the unpaid operational debt;

17

(c) the creditor has not delivered the invoice or notice for payment to the corporate debtor;

(d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or

(e) any disciplinary proceeding is pending against any proposed resolution professional:

Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section.”

14. The entire scheme of the Code in relation to the insolvency

resolution by an operational creditor initially came up for exposition by this

Court in the case of Mobilox Innovations (supra), decided on 21.09.2017.

14.1. In that case, the appellant had sub-contracted certain work to the

respondent and entered into a non-disclosure agreement. The appellant

withheld certain payments against invoices raised by the respondent while

alleging that certain actions of the respondent were in breach of the non-

disclosure agreement. A demand notice was sent by the respondent under

Section 8 of the Code and in response thereto, the appellant maintained

that there existed serious and bona fide disputes and the notice was issued

as a pressure tactic. Thereafter, the respondent filed an application before

the Adjudicating Authority under Section 9 of the Code, stating that

operational debt was owed by the appellant. The Adjudicating Authority

dismissed this application by holding that the claim of the operational

creditor was hit by Section 9(5)(ii)(d) of the Code since the payment was

18 being disputed by the corporate debtor. However, the Appellate Tribunal

allowed the appeal preferred by the operational creditor and remitted the

matter to the Adjudicating Authority to consider admission of the application

if it was otherwise complete. The order so passed by the Appellate Tribunal

was challenged in appeal before this Court.

14.2. In the backdrop as aforesaid, this Court traversed through the

scheme of the Code and particularly, the provisions relating to insolvency

resolution by an operational creditor, including the history of making of such

provisions. Thereafter, this Court summarised the course of action by the

Adjudicating Authority on receiving an application under Section 9 of the

Code and the questions to be determined as follows: -

“34. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine:

(i) Whether there is an "operational debt" as defined exceeding Rs 1 lakh? (See Section 4 of the Act)

(ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and

(iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute?

If any one of the aforesaid conditions is lacking, the application would have to be rejected...” 14.3. As indicated hereinbefore, at the relevant time of decision in

Mobilox Innovations, the expression occurring in Section 8(2)(a) of the

Code was “and”, which was required to be read as “or” looking to the

object of the Code and purpose of the provision. This reading down was

later on duly incorporated by the legislature by way of the necessary

19 amendment. This Court, while holding that “and” must be read as “or” to

prevent an anomalous situation, laid down that the objective of the Code

with regards to operational debts was to ensure that these debts did not

enable operational creditors to initiate insolvency resolution process

against the corporate debtors prematurely, since debts owed to

operational creditors were generally smaller than those owed to financial

creditors. Therefore, it was held by this Court that to stave off the initiation

of insolvency resolution process for extraneous consideration, it was

enough to be noticed that a dispute existed between the parties. This

Court said, -

“38…We have also seen that one of the objects of the Code qua operational debts is to ensure that the amount of such debts, which is usually smaller than that of financial debts, does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It is for this reason that it is enough that a dispute exists between the parties.”

14.4. This Court further held that the Adjudicating Authority was not

required to examine the merits of the dispute but it was supposed to

examine only prima facie if a dispute truly existed between the parties,

and that the same was not patently feeble or imaginary. If the answer to

the aforementioned was in the affirmative, the Adjudicating Authority was

required to reject the application. This Court, inter alia, held and laid down

as under: -

“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

20 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.” (underlining supplied for emphasis)

14.5. This Court, thereafter, examined the facts of the case before it and

while setting aside the order of the Appellate Tribunal, said as follows: -

“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 defence 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 characterising the defence as vague, got up and motivated to evade liability.”

15. The issue, as to whether the provisions of the Code could be

invoked in respect of operational debt where an arbitral award has been

passed against the operational debtor but which has not been finally

adjudicated upon, came up for fuller exposition in the case of K. Kishan

(supra), decided on 14.08.2018.

15.1. In that case, the disputes between the parties were referred to

arbitration; and the Arbitral Tribunal delivered its award on 21.01.2017,

inter alia, allowing certain claims in favour of the respondent but rejecting 21 three of its cross-claims. A notice dated 06.02.2017 under Section 8 of the

Code was sent by the respondent to the corporate debtor, demanding

payment which was replied by the corporate debtor on 16.02.2017,

disputing the demand since the amount was subject matter of pending

arbitration proceedings, while also asserting that as per their accounts,

rather, the respondent was to pay a larger amount to them. A petition

under Section 34 of the Act of 1996 challenging the award was filed by

the corporate debtor on 20.04.2017. Thereafter, a petition under Section 9

of the Code was filed by the respondent on 14.07.2017. The Adjudicating

Authority, by its order dated 29.08.2017, admitted the petition on the

grounds that the amount was admitted by counsel for the respondent,

which rendered the factum of pendency of Section 34 petition irrelevant;

and that the award had not been stayed. These findings of the

Adjudicating Authority were affirmed by the Appellate Tribunal while

additionally holding that the non-obstante clause in Section 238 of the

Code would override the Act of 1996. Being aggrieved, the corporate

debtor preferred an appeal before this Court.

15.2. It was observed by this Court that one of the counterclaims was

rejected on merits and the same was pending adjudication in the petition

filed under Section 34 of the Act of 1996 and hence, it could not be said

that no dispute existed between the parties. While iterating the

enunciations in Mobilox Innovations (supra) that the dispute must pre-

exist the date of receipt of demand notice, it was emphasised by this

22 Court that on its objectives, the Code was not a substitute of recovery

proceedings; and an operational debt in an arbitral award could not be

allowed to jeopardise a solvent company, which could state that the

award was being challenged. This Court further observed that mere

factum of challenge would be sufficient to state that the award was in

dispute, rendering it to be a case of a pre-existing ongoing dispute; and

that the object of the Code, insofar as operational creditors are

concerned, is to put the insolvency process against a corporate debtor

only in clear cases where a real dispute between the parties as to the

debt owed does not exist. This Court exposited in clear terms as follows: -

“22…it becomes clear that operational creditors cannot use the Insolvency Code either prematurely or for extraneous considerations or as a substitute for debt enforcement procedures. The alarming result of an operational debt contained in an arbitral award for a small amount of say, two lakhs of rupees, cannot possibly jeopardize an otherwise solvent company worth several crores of rupees. Such a company would be well within its rights to state that it is challenging the arbitral award passed against it, and the mere factum of challenge would be sufficient to state that it disputes the award. Such a case would clearly come within para 38 of Mobilox Innovations, being a case of a pre-existing ongoing dispute between the parties. The Code cannot be used in terrorem to extract this sum of money of rupees two lakhs even though it may not be finally payable as adjudication proceeding in respect thereto are still pending. We repeat that the object of the Code, at least insofar as operational creditors are concerned, is to put the insolvency process against a corporate debtor only in clear cases where a real dispute between the parties as to the debt owed does not exist.” (underlining supplied for emphasis)

15.3. While re-emphasising that in the scheme of IBC, as regards

operational debt, all that has to be seen is whether the debt could be said

to be disputed, this Court stated in no uncertain terms that challenge to

23 the arbitral award shows a pre-existing dispute, which continues at least

until final adjudicatory process has taken place in terms of Sections 34

and 37 of the Act of 1996. This Court also indicated two diverse

eventualities in regard to the challenge to the arbitral award and pointed

out as to when the insolvency process may be put into operation and

when it cannot be. We may profitably reproduce the relevant passages of

the decision in K. Kishan (supra) as follows: -

“27. We repeat with emphasis that under our Code, insofar as an operational debt is concerned, all that has to be seen is whether the said debt can be said to be disputed, and we have no doubt in stating that the filing of a Section 34 petition against an arbitral award shows that a pre-existing dispute which culminates at the first stage of the proceedings in an award, continues even after the award, at least till the final adjudicatory process under Sections 34 and 37 has taken place.

28. We may hasten to add that there may be cases where a Section 34 petition challenging an arbitral award may clearly and unequivocally be barred by limitation, in that it can be demonstrated to the court that the period of 90 days plus the discretionary period of 30 days has clearly expired, after which either no petition under Section 34 has been filed or a belated petition under Section 34 has been filed. It is only in such clear cases that the insolvency process may then be put into operation.

29. We may hasten to add that there may also be other cases where a Section 34 petition may have been instituted in the wrong court, as a result of which the petitioner may claim the application of Section 14 of the Limitation Act to get over the bar of limitation laid down in Section 34(3) of the Arbitration Act. In such cases also, it is obvious that the insolvency process cannot be put into operation without an adjudication on the applicability of Section 14 of the Limitation Act.” (underlining supplied for emphasis)

16. We are clearly of the view that the aforesaid enunciations are

squarely applicable to the facts of the present case. As noticed, on the

date when the appellant chose to serve the notices under Section 8 of the

Code (i.e., on 14.02.2020), the arbitral awards in the present case had 24 not attained finality and rejection of petitions under Section 34 of the Act

of 1996 had been in challenge in appeals under Section 37 thereof. Even

if the said appeals were dismissed in default, the respondent company

had moved for restoration with advance notice to the appellant. It had not

been a clear case of the corporate debtor being in default with no pre-

existing dispute.

17. The appellant, however seeks to suggest that the appeals having

been dismissed in default and having not been restored as on the date of

notice, the law requiring pre-existing dispute is of no application. In that

regard, restoration of the appeals is sought to be termed by the appellant

as a ‘later development’ or a ‘post-facto event’. The submissions are

neither in conformity with the relevant facts nor compatible with the law

applicable.

17.1. On the factual aspect, it remains rather indisputable that even if

the appeals were dismissed in default on 22.11.2019, the respondent

company indeed moved the applications for restoration on 17.12.2019

with advance notice to the appellant. Thus, on the date of issuance of the

notices (i.e., 14.02.2020), the appellant was aware of the fact that the

appeals under Section 37 of the Act of 1996 had not been decided on

merits and the applications for restoration had been moved within 30 days

of such default dismissal. It would be interesting to draw a parallel with

the illustration stated by this Court in the above quoted paragraph 29 of

K. Kishan (supra), that even if a Section 34 petition had been instituted in

25 a wrong Court and application under Section 14 of the Limitation Act to

get over the bar of limitation was being pursued, the insolvency process

cannot be put into operation without an adjudication on the applicability of

Section 14 of the Limitation Act. The same analogy would apply, rather

with more emphasis and force, in relation to a default dismissal where

there had not been any adjudication on merits and where the prayer for

restoration is pending consideration. We have no hesitation in saying that

in such a case, without a final decision on the prayer for restoration, the

insolvency process at the instance of an operational creditor cannot be

put into operation.

18. For what has been discussed hereinabove, other aspects relating

to the principles that restoration would revive the proceeding to the

original status are not even required to be gone into, because the fact of

moving an application for restoration of appeal under Section 37 of the

Act of 1996 and bringing it to the notice of the operational creditor is, in

our view, sufficient to bring the matter within the four corners of “pre-

existing dispute”, so as to effectively negate any attempt by the

operational creditor to seek insolvency resolution. However, having

regard to the issues sought to be raised, we deem it appropriate to also

deal with the ancillary submissions of the appellant.

19. In order to counter the reasoning of NCLAT that restoration of

appeal relates back to the date of its filing, reference is made on behalf of

the appellant to a decision of this Court in Addagada Raghavamma 26 (supra). The question of applying the doctrine of relation back arose in the

said case in the wake of a question as to the date from which severance

in status would be deemed to have taken place in the event of declaration

by a member of Joint Hindu Family of his intention to live separate. The

Court found that there were two ingredients of such a declaration: one

being expression of intention and other being of bringing such expression

to the knowledge of the persons affected; and it was found that once the

knowledge was brought home (depending on the facts of each case), it

would relate back to the date when the intention was found and

expressed. However, this Court observed that between these two dates,

that is, of expression of intention and of bringing it to the knowledge of the

persons affected, several eventualities were possible whereby, vested

rights might be created in other persons; and if the doctrine of relation

back was invoked without any limitation, the vested rights so created

would be affected. In that context, this Court held that the doctrine should

not affect the vested rights and such a limitation was being placed to

meet with the given contingency.

19.1. It is difficult to find any application of the aforesaid enunciation to

the question at hand. It remains trite that when a suit or appeal is

dismissed in default and is restored after the Court is satisfied on the

cause shown for default, such restoration would revive the proceedings to

their status before default dismissal; and the doctrine of relation back

would come into play in the manner that the proceedings shall continue in

27 their original status, unless otherwise stated in the order of restoration or

coming out by necessary implication. The principles stated in Addagada

Raghavamma (supra) do not apply to the present case; and the

reference to this decision remains entirely inapposite for the present case.

20. Similarly, reliance on certain observations in the minority opinion

in the case of Vareed Jacob (supra), could only be disapproved as being

rather misdirected.

20.1. In that case, the relevant background aspects were that in a suit

for partition (Civil Suit No. 332/1122), the final decree was passed on

21.05.1964 whereunder, defendant No. 6 was granted recovery of certain

items. On 25.06.1969, the defendant No. 3 in the said suit filed another

suit, being Suit No. 209 of 1969, for setting aside the decree dated

21.05.1964. In the later suit, on 25.06.1969, the Court issued a temporary

injunction restraining the decree-holder from executing the decree dated

21.05.1964. On 02.04.1973, the said Suit No. 209 of 1969 was dismissed

in default. However, it was restored on 20.12.1974 and then, was

dismissed on merits on 21.03.1975. The appeals thereagainst were also

dismissed by the first Appellate Court and by the High Court. Then, on

18.03.1981, an execution petition was filed, seeking execution of the

decree dated 21.05.1964 in Suit No. 332/1122 wherein, the judgment-

debtor raised the objection of limitation with the submissions that the

execution petition was not filed within 12 years from the date of decree,

i.e., 21.05.1964. The Executing Court as also the High Court held that the

28 decree-holder was precluded from executing the decree during the period

25.06.1969 to 21.03.1975, i.e., the date when temporary injunction was

granted in Suit No. 209 of 1969 and until that suit was finally dismissed on

merits; and if that period was excluded, the execution petition was well

within time. The question that arose in appeal before a 3-Judge Bench of

this Court was as to whether there was an automatic revival of

interlocutory orders with the restoration of the suit.

20.2. In relation to the aforesaid question, the learned Judges forming

majority referred to several decisions to hold that the question, as to

whether restoration revives ancillary orders passed before dismissal of

the suit, would depend upon the terms in which order of dismissal is

passed and the terms in which the suit is restored. It was noticed that in

previous decisions, it had been held that interlocutory orders passed

before dismissal would stand revived along with the suit when dismissal is

set aside and the suit is restored, unless the Court expressly or by

implication excludes the operation of such interlocutory orders; or if there

was any alienation in favour of a third party during the interregnum

between dismissal and restoration. In the given case, the majority held

that in computing the period of limitation for execution of the decree, the

decree-holder was entitled to exclude the period between the date of

passing of an order of temporary injunction, that is, 25.06.1969 and final

date of dismissal of the suit, that is, 21.03.1975. On the other hand, the

learned Judge expressing minority opinion pointed out the distinction

29 between supplemental proceedings and incidental proceedings in the

scheme of the Code of Civil Procedure and opined that a construction

preserving the rights of the parties pending adjudication must be allowed

to operate and an interlocutory order which loses its force by dismissal of

the suit may not revive on restoration, unless expressly directed.

20.3. Much emphasis is laid on behalf of the appellant on the

observations in the minority opinion as regards the issue pertaining to

legal treatment of the rights accrued in the interregnum. In our view, any

attempt to read the minority opinion as laying down independently a

distinct principle of law would not be a correct application of the law

governing precedents. The submissions are not correct factually either,

when we read the separate opinions holistically. The majority opinion is

clear and categorical where the principles stated in several decisions of

High Courts have been noticed with approval, while holding that the

decree-holder was entitled to exclude the entire period during which

temporary injunction was in operation; and it was obviously taken that

when a suit, which had been dismissed in default, stood restored, the

interlocutory order of temporary injunction was also restored because

nothing to the contrary was indicated in the order of default dismissal or

the order of restoration.

20.4. We need not elaborate that in the matters relating to divergence

of views in the Bench, it is the view of the majority that prevails and is to

be taken as laying down binding principles and declaration of law by this

30 Court in terms of Article 141 of the Constitution of India. It is too far

stretched to contend, as attempted on behalf of the appellant, that any

observation occurring in the minority opinion as regards any question or

issue which has not been dealt with by the majority, may be read as

having force of law or persuasive value. The submissions are not correct

and deserve to be rejected.

21. We may also observe that the substance of the submission sought

to be based on the aforesaid decisions in Addagada Raghavamma and

Vareed Jacob is that vested rights are required to be protected. This

submission proceeds on a fundamental fallacy that on default dismissal of

the appeals filed by the respondent company under Section 37 of the Act

of 1996, some vested right was created in the appellant in its capacity as

an operational creditor. The real issue in the present case is about the

“pre-existing dispute” as regards the money sought to be claimed by the

operational creditor; and when pendency of the appeal is admittedly

answering to the description of pre-existing dispute, its default dismissal

could only be regarded as a partial eclipse, which momentarily puts the

dispute in hibernation. Of course, there could be a case where restoration

is not applied for and there could also be a case where restoration is

declined, which might put an effective end to the dispute but, when

restoration of the appeal is granted, it definitely re-activates the dispute.

In fact, for the purpose and in the scheme of the Code, even pendency of

31 an application for restoration is sufficient to bring the matter within the

four corners of “pre-existing dispute”.

22. We are further clearly of the view that the applications moved by

the appellant for initiation of CIRP were required to be rejected in terms of

Section 9(5)(ii)(d) of the Code which mandates such rejection if a notice

of dispute had been received by the operational creditor or there is record

of dispute in the information utility. Both the features are present in this

case. The respondent company had unambiguously responded to the

notices sent by the appellant within 10 days with the assertions that the

applications for restoration of appeals were pending in the High Court,

which were filed much before the receipt of demand notices and with

advance notice to the appellant.

23. It is also significant to notice that as on the very day of filing of the

applications under Section 9 by the appellant, i.e., 02.03.2020, the

appeals were indeed restored by the High Court. The NCLAT took note of

the fact that the applications, though sworn on 29.02.2020, were filed only

on 02.03.2020. Thus, a wishful attempt of the appellant to use the default

dismissal of appeals for initiation of CIRP had also lost its ground on the

date of filing of the applications under Section 9 of the Code. The NCLT

had proceeded from an altogether wrong angle and even while passing

the order on 30.09.2020, did not pause to consider that the appeals stood

restored on the date of filing of the applications under Section 9 and

therefore, even the hyper-technical stance of the appellant was also

32 knocked out. The NCLT had, in fact, totally misconstrued the clear and

emphatic expositions in K. Kishan (supra).

24. For what has been observed and discussed hereinabove, we are

satisfied that the Appellate Tribunal (NCLAT) has rightly set aside the

orders passed by the Adjudicating Authority (NCLT) and has rightly closed

the proceedings against the respondent company. There is absolutely no

reason to consider any interference at the instance of the appellant.

25. Accordingly, these appeals fail and are dismissed. All pending

applications also stand disposed of.

..………..………….…….J. (DINESH MAHESHWARI)

..………..………….…….J. (VIKRAM NATH) 1

New Delhi, Dated: October 01, 2021.

33 ITEM NO.4 + 5 Court 15 (Video Conferencing) SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No(s). 5899/2021 M/S JAI BALAJI INDUSTRIES Appellant(s) VERSUS D.K. MOHANTY & ANR. Respondent(s)

(IA No.121608/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.121610/2021-STAY APPLICATION.....[TO BE TAKEN UP ALONG WITH C.A. No. 5904/2021] ) WITH Civil Appeal No(s). 5904/2021 (FOR ADMISSION and I.R. and IA No.121667/2021-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No.121666/2021-EX-PARTE STAY ) Date : 01-10-2021 These appeals were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE VIKRAM NATH

For Appellant(s) Mr. Diwakar Maheshwari, Adv.

Mr. Karun Mehta, AOR For Respondent(s)

UPON hearing the counsel the Court made the following O R D E R

Appeals are dismissed in terms of the Signed Order.

All pending applications stand disposed of.

(SONIA BHASIN) (RAM SUBHAG SINGH) COURT MASTER (SH) BRANCH OFFICER (Reportable Signed Order is placed on file)

34