Miss Lucy
← All judgments

M/S. Laina Power Engineering vs Sokeo Power Private Limited

National Company Law Appellate Tribunal16 August 2018

Ratio decidendi

The rule this decision rests on

Where an operational creditor's application under Section 9 of the Insolvency and Bankruptcy Code, 2016 is met by a pre-demand-notice dispute raised in correspondence by the corporate debtor, and that dispute is shown on the record to have existed before the Section 8(1) demand notice was issued, with nothing showing that the debtor's objections were corrected or the claim reduced, the existence of a dispute is established and the application is not a fit case for admission under Section 9. Where the corporate debtor's grounds of dispute raise disputed questions of fact (such as whether scrap material was subsequently removed, or whether an inflated tonnage claim was corrected, reduced or deducted), those questions cannot be determined by the Adjudicating Authority in insolvency proceedings, and their unresolved existence supports rejection of the application.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

1NATIONAL COMPANY LAW APPELLATE TRIBUNALNEW DELHICompany Appeal (AT) (Insolvency) No. 452 of 2018IN THE MATTER OF:

M/s. Laina Power Engineering ...Appellant

Versus

Sokeo Power Private Limited ...Respondent

Present: For Appellant : Mr. D. Abhinav Rao and Ms. Monalisa Kosaria, Advocates

ORDER

16.08.2018 The appellant, 'Operational Creditor' filed an application

under Section 9 of the Insolvency and Bankruptcy Code, 2016 which was

dismissed by the Adjudicating Authority (National Company Law Tribunal),

Hyderabad Bench, Hyderabad by the impugned order dated 3rd July, 2018 giving

rise to the present appeal.

2. Learned counsel appearing on behalf of the appellant submitted that

though the claim of the appellant has been admitted by the respondent, the

Adjudicating Authority wrongly relied on other evidence(s) to come to the

conclusion that there is an 'existence of dispute'. He relied on e-mail dated 12th

July, 2017 to suggest that the respondent has admitted the dues.

3. From the record we find that e-mails were exchanged between the parties

on 3rd May, 2017, 5th May, 2017, and 18th May, 2017 alleging non-submission

of work completion certificate, non-completion of work, amount deductible for 2

lead piping and non-removal of scrap material charges and exorbitant tonnage

claim made by the appellant contrary to existing industry practices. All these

disputes were raised by the respondent much prior to issuance of demand notice

under Section 8(1) issued on 7th July, 2017. There is nothing on record to

suggest any correctional measure was taken by the appellant. On the other

hand, respondent pleaded before the Adjudicating Authority that there is an

'existence of dispute'.

4. There being disputed question of facts as to whether subsequently the

scrap material were removed and exorbitant tonnage claim by the appellant was

corrected or amount deducted or reduced, and as such issues cannot be

determined by the Adjudicating Authority, we hold that the Adjudicating

Authority rightly held that it was not a fit case for admission of application under

Section 9. We find no merit in the appeal. It is accordingly dismissed.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk/

Company Appeal (AT) (Insolvency) No. 452 of 2018

This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.

Research this judgment with Miss Lucy

Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.

Try Miss Lucy free