Pedersen Consultants India Pvt. Ltd vs Nitesh Estates Limited

[Arising out of Order dated 5th October, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Bengaluru Bench, Bengaluru in C.P. (IB) No. 35/BB/2018]

IN THE MATTER OF:

Pedersen Consultants India Pvt. Ltd. ...Appellant

Vs.

Nitesh Estates Limited ...Respondent

Present: For Appellant: - Mr. Abhishek Dutta, Ms. Akanksha Jain and Ms. Syali Petiwale, Advocates.

For Respondent: - Ms. Haripriya Padmanabhan, Mr. Abir Phukan and Ms. Vaishali Goyal, Advocates.

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The Appellant- 'Pedersen Consultants India Pvt. Ltd.'- ('Operational

Creditor') filed application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 ("I&B Code" for short) against 'M/s. Nitesh

Estates Limited'- ('Corporate Debtor'). The Adjudicating Authority

(National Company Law Tribunal), Bengaluru Bench, Bengaluru,

discussing the claim and counter claim of the parties, rejected the 2

application by impugned order dated 5th October, 2018 with following

observations:

"7. The above narration of facts discloses

that there are various disputed question of

fact with regard to the alleged debt and

default raised in the petition. The contention

of the respondent that the defense raised by

the respondent is moonshine cannot be

accepted. On the other hand, the Petitioner

Company itself could not prove that the debt

and default in question is beyond doubt. The

Tribunal, cannot enter into enquiry with

regard to the disputed questions, in a case

filed under the IBC, 2016, which is summary

in nature, and the issues to be primarily

decided basing on the principles of natural

justice. As stated supra, there are several

clauses in the agreement in question, and the

respondent, on the contrary made claim

against the petitioner. Ultimately, the parties

in the first instance have to reconcile their own

statement of accounts before approaching the

Tribunal to invoke provisions of IBC, 2016.

The Petitioner, instead of finalising the

Company Appeal (AT) (Insolvency) No. 720 of 2018 3

disputed amounts, has filed the instant

Company Petition on untenable grounds. The

question of excess payment, and set-off as

claimed by the respondent has to be examined

in an appropriate proceeding in a case filed in

accordance with the law, and the issue cannot

be adjudicated in the instant Company

Petition. Therefore, we are of considered

opinion that there is a dispute with regard to

debt in question, and thus it is not a fit case to

admit."

2. The Respondent- 'M/s. Nitesh Estates Limited'- ('Corporate

Debtor') has taken plea that it has informed the Appellant by e-mail dated

27th February, 2017 that there are serious issues with respect to the

engagement with the Appellant, but such e-mail does not relate to any

pre-existing dispute. Whatever the stand taken by the 'Corporate Debtor'

before the Adjudicating Authority, are afterthought which is after receipt

of Demand Notice under Section 8(1) of the 'I&B Code' issued on 14th

July, 2017.

3. The Adjudicating Authority has not rejected Section 9 application

on the ground of pre-existing dispute, but rejected it on the ground that

it, cannot enter into enquiry with regard to the disputed claim.

Company Appeal (AT) (Insolvency) No. 720 of 2018 4

4. The aforesaid finding has been given by the Adjudicating Authority

on the basis of statement made by the 'Corporate Debtor' as apparent

from the impugned order, relevant of which is quoted below:

"5. The Learned Counsels for the Petitioner,

while pointing out various averments made in the

Company Petition and the documents filed in

support of the petition, has also filed written

arguments dated 18.09.2018, by inter alia,

contending as follows:

a. The details of invoices raised, the

corresponding amount paid by the

respondent and the outstanding amounts

remaining have been tabulated below:

S. Date of Invoice Service Page No. issuance of No. Code No. in Invoice Amount the petition Raised Paid Outstanding 1. 08.04.2016 1021/16 2000478281 2,74,800 2,40,000 34,800 86 2. 27.06.2016 1038/16 (VP- Retail 4,14,000 0 4,14,000 87 3. 01.12.2016 1104/16 and 6,90,000 0 6,90,000 88 Commercial) 4. 14.04.2016 1022/16 2000178281 3,43,000 3,00,000 43,500 83 5. June 27, 1037/16 (Chief 5,17,500 0 5,17,500 84 2016 Operating Officer- COO) 6. 17.08.2016 1056/16 2000278281 3,22,000 0 3,22,000 85 (Head of Project Finance- HOPF) TOTAL 25,61,300 5,40,000 20,21,800

Company Appeal (AT) (Insolvency) No. 720 of 2018 5

That from the above, it is amply clear that an

amount of Rs.20,21,800/-still remains

outstanding from the Respondent. Based on

the request made by the respondent, the

Petitioner put a replacement for the position

held by Mr. Rajit Mehta. The Petitioner was

offered a settlement of Rs.6,00,000/- by the

Respondent. However, that was not

accepted.

b. It is contended that the Petitioner

cannot adjust in his books to adjust the

amount paid in relation to the employment of

Mr. Rajit Mehta. There is no provision for set-

off under the IBC, 2016. The respondent

issued reply with a delay of 12 days. The

additional documents filed by the

respondent should not be taken into

consideration with a defense raised by the

respondent is moonshine defense.

6. The Learned Counsel for the Respondent

has disputed the contention of the Petitioner and

the debt in question is a disputed and has pointed

the averments stated in additional Statement of

Company Appeal (AT) (Insolvency) No. 720 of 2018 6

Objections as briefly stated above. The case is

covered by the Apex Court judgement rendered in

the Mobilox Innovations Private Limited Vs.

Kirusa Software Private Limited case. Therefore,

this C.P.(IB) No.35/BB/2018 is liable to be

dismissed."

5. In an application under Section 9, it is always open to the

'Corporate Debtor' to point out existence of dispute, if any. Such existence

of dispute should be that of a period prior to the issuance of the demand

notice under Section 8(1) of the 'I&B Code'.

6. In "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P)

Limited− 2017 1 SCC OnLine SC 353", the Hon'ble Supreme Court held

that the existence of the dispute and/or the suit or arbitration proceeding

must be pre-existing - i.e. it must exist before the receipt of the demand

notice or invoice, as the case may be. The Hon'ble Supreme Court further

observed:

"33. The scheme under Sections 8 and 9 of

the Code, appears to be that an operational

creditor, as defined, may, on the occurrence of

a default (i.e., on non-payment of a debt, any

part whereof has become due and payable and

has not been repaid), deliver a demand notice

Company Appeal (AT) (Insolvency) No. 720 of 2018 7

of such unpaid operational debt or deliver the

copy of an invoice demanding payment of such

amount to the corporate debtor in the form set

out in Rule 5 of the Insolvency and Bankruptcy

(Application to Adjudicating Authority) Rules,

2016 read with Form 3 or 4, as the case may

be (Section 8(1)). Within a period of 10 days of

the receipt of such demand notice or copy of

invoice, the corporate debtor must bring to the

notice of the operational creditor the existence

of a dispute and/or the record of the pendency

of a suit or arbitration proceeding filed before

the receipt of such notice or invoice in relation

to such dispute (Section 8(2)(a)). What is

important is that the existence of the dispute

and/or the suit or arbitration proceeding must

be pre-existing - i.e. it must exist before the

receipt of the demand notice or invoice, as the

case may be. In case the unpaid operational

debt has been repaid, the corporate debtor

shall within a period of the self-same 10 days

send an attested copy of the record of the

electronic transfer of the unpaid amount from

the bank account of the corporate debtor or

Company Appeal (AT) (Insolvency) No. 720 of 2018 8

send an attested copy of the record that the

operational creditor has encashed a cheque or

otherwise received payment from the corporate

debtor (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). This application is

to be filed under Rule 6 of the Insolvency and

Bankruptcy (Application to Adjudicating

Authority) Rules, 2016 in Form 5, accompanied

with documents and records that are required

under the said form. Under Rule 6(2), the

applicant is to dispatch by registered post or

speed post, a copy of the application to the

registered office of the corporate debtor. Under

Section 9(3), along with the application, the

statutory requirement is to furnish a copy of the

invoice or demand notice, an affidavit to the

effect that there is no notice given by the

corporate debtor relating to a dispute of the

Company Appeal (AT) (Insolvency) No. 720 of 2018 9

unpaid operational debt and a copy of the

certificate from the financial institution

maintaining accounts of the operational

creditor confirming that there is no payment of

an unpaid operational debt by the corporate

debtor. Apart from this information, the other

information required under Form 5 is also to be

given. Once this is done, the adjudicating

authority may either admit the application or

reject it. If the application made under sub-

section (2) is incomplete, the adjudicating

authority, under the proviso to sub-section 5,

may give a notice to the applicant to rectify

defects within 7 days of the receipt of the notice

from the adjudicating authority to make the

application complete. Once this is done, and the

adjudicating authority finds that either there is

no repayment of the unpaid operational debt

after the invoice (Section 9(5)(i)(b)) or the invoice

or notice of payment to the corporate debtor has

been delivered by the operational creditor

(Section 9(5)(i)(c)), or that no notice of dispute

has been received by the operational creditor

from the corporate debtor or that there is no

Company Appeal (AT) (Insolvency) No. 720 of 2018 10

record of such dispute in the information utility

(Section 9(5)(i)(d)), or that there is no

disciplinary proceeding pending against any

resolution 66 professional proposed by the

operational creditor (Section 9(5)(i)(e)), it shall

admit the application within 14 days of the

receipt of the application, after which the

corporate insolvency resolution process gets

triggered. On the other hand, the adjudicating

authority shall, within 14 days of the receipt of

an application by the operational creditor, reject

such application if the application is incomplete

and has not been completed within the period

of 7 days granted by the proviso (Section

9(5)(ii)(a)). It may also reject the application

where there has been repayment of the

operational debt (Section 9(5)(ii)(b)), or the

creditor has not delivered the invoice or notice

for payment to the corporate debtor (Section

9(5)(ii)(c)). It may also reject the application if

the notice of dispute has been received by the

operational creditor or there is a record of

dispute in the information utility (Section

9(5)(ii)(d)). Section 9(5)(ii)(d) refers to the notice

Company Appeal (AT) (Insolvency) No. 720 of 2018 11

of an existing dispute that has so been

received, as it must be read with Section 8(2)(a).

Also, if any disciplinary proceeding is pending

against any proposed resolution professional,

the application may be rejected (Section

9(5)(ii)(e))"

7. In the said case, the Hon'ble Supreme Court held as to what are

the relevant facts to be examined by the Adjudicating Authority while

examining an application under Section 9:

"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

Company Appeal (AT) (Insolvency) No. 720 of 2018 12

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. Apart from the above, the

adjudicating authority must follow the

mandate of Section 9, as outlined above, and

in particular the mandate of Section 9(5) of

the Act, and admit or reject the application,

as the case may be, depending upon the

factors mentioned in Section 9(5) of the Act."

8. From the aforesaid decision, it is clear that the existence of dispute

must be pre-existing i.e. it must exist prior to issuance of the demand

notice or invoice. If it comes to the notice of the Adjudicating Authority

that the 'operational debt' is exceeding Rs. 1 lakh and the application

shows that the aforesaid debt is due and payable and has not been paid,

in such case, in absence of 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', the

Company Appeal (AT) (Insolvency) No. 720 of 2018 13

application under Section 9 cannot be rejected and is required to be

admitted.

9. In "Innoventive Industries Ltd. v. ICICI Bank and Anr.─ (2018)

1 SCC 407", the Hon'ble Supreme Court while explaining the provisions

of Section 9 observed and held:

"27. The scheme of the Code is to ensure that

when a default takes place, in the sense that a

debt becomes due and is not paid, the insolvency

resolution process begins. Default is defined in

Section 3(12) in very wide terms as meaning

non-payment of a debt once it becomes due and

payable, which includes non-payment of even

part thereof or an instalment amount. For the

meaning of "debt", we have to go to Section

3(11), which in turn tells us that a debt means a

liability of obligation in respect of a "claim" and

for the meaning of "claim", we have to go back to

Section 3(6) which defines "claim" to mean a

right to payment even if it is disputed. The Code

gets triggered the moment default is of rupees

one lakh or more (Section 4). The corporate

insolvency resolution process may be triggered

Company Appeal (AT) (Insolvency) No. 720 of 2018 14

by the corporate debtor itself or a financial

creditor or operational creditor. A distinction is

made by the Code between debts owed to

financial creditors and operational creditors. A

financial creditor has been defined under

Section 5(7) as a person to whom a financial debt

is owed and a financial debt is defined in Section

5(8) to mean a debt which is disbursed against

consideration for the time value of money. As

opposed to this, an operational creditor means a

person to whom an operational debt is owed and

an operational debt under Section 5(21) means a

claim in respect of provision of goods or services.

28. When it comes to a financial creditor

triggering the process, Section 7 becomes

relevant. Under the explanation to Section 7(1), a

default is in respect of a financial debt owed to

any financial creditor of the corporate debtor- it

need not be a debt owed to the applicant

financial creditor. Under Section 7(2), an

application is to be made under sub-section (1)

in such form and manner as is prescribed, which

takes us to the Insolvency and Bankruptcy

Company Appeal (AT) (Insolvency) No. 720 of 2018 15

(Application to Adjudicating Authority) Rules,

2016. Under Rule 4, the application is made by

a financial creditor in Form 1 accompanied by

documents and records required therein. Form 1

is a detailed form in 5 parts, which requires

particulars of the applicant in Part I, particulars

of the corporate debtor in Part II, particulars of

the proposed interim resolution professional in

part III, particulars of the financial debt in part

IV and documents, records and evidence of

default in part V. Under Rule 4(3), the applicant

is to dispatch a copy of the application filed with

the adjudicating authority by registered post or

speed post to the registered office of the

corporate debtor. The speed, within which the

adjudicating authority is to ascertain the

existence of a default from the records of the

information utility or on the basis of evidence

furnished by the financial creditor, is important.

This it must do within 14 days of the receipt of

the application. It is at the stage of Section 7(5),

where the adjudicating authority is to be

satisfied that a default has occurred, that the

corporate debtor is entitled to point out

Company Appeal (AT) (Insolvency) No. 720 of 2018 16

that a default has not occurred in the sense

that the "debt", which may also include a

disputed claim, is not due. A debt may not

be due if it is not payable in law or in fact.

The moment the adjudicating authority is

satisfied that a default has occurred, the

application must be admitted unless it is

incomplete, in which case it may give notice

to the applicant to rectify the defect within

7 days of receipt of a notice from the

adjudicating authority. Under sub-section (7),

the adjudicating authority shall then

communicate the order passed to the financial

creditor and corporate debtor within 7 days of

admission or rejection of such application, as the

case may be.

29. The scheme of Section 7 stands in

contrast with the scheme under Section 8 where

an operational creditor is, on the occurrence of a

default, to first deliver a demand notice of the

unpaid debt to the operational debtor in the

manner provided in Section 8(1) of the Code.

Under Section 8(2), the corporate debtor can,

Company Appeal (AT) (Insolvency) No. 720 of 2018 17

within a period of 10 days of receipt of the

demand notice or copy of the invoice mentioned

of a dispute or the record of the pendency of a

suit or arbitration proceedings, which is pre-

existing- i.e. before such notice or invoice was

received by the corporate debtor. The moment

there is existence of such a dispute, the

operational creditor gets out of the clutches of the

Code."

10. From the aforesaid findings, it is clear that the claim means a right

to payment even if it is disputed. Therefore, merely because the 'Corporate

Debtor' has disputed the claim by showing that there is certain counter

claim, it cannot be held that there is pre-existence of dispute.

11. In the present case, as we have observed that there is no record to

suggest pre-existence of dispute with regard to the services rendered by

the Appellant, we hold that the application under Section 9 should not

have been rejected by the Adjudicating Authority on the ground that the

dispute about the quantum of payment cannot be determined.

12. The Respondent disputed that the alleged debt is not the amount as

shown in the Form. However, on mere dispute of amount, the application

under Section 9 cannot be rejected, as in terms of Section 3(6) which

defines 'claim' to mean a right to payment even if it is disputed. The Hon'ble

Company Appeal (AT) (Insolvency) No. 720 of 2018 18

Supreme Court in "Innoventive Industries Ltd. v. ICICI Bank and Anr."

(Supra) noticed the definition of 'claim' and held that even if the right of

payment is disputed, the Code gets triggered the moment default is of

rupees one lakh or more (Section 4). In the circumstances, in absence of

any pre-existing dispute, it was not open for the Adjudicating Authority to

reject the application under Section 9.

13. For the reasons aforesaid, we set aside the impugned order dated 5th

October, 2018 and remit the case to the Adjudicating Authority to admit

the application under Section 9 after notice to the Respondent, so that the

Respondent may get an opportunity to settle the matter prior to the

admission of the application.

The appeal is allowed with aforesaid observations and directions. No

costs.

(Justice S.J. Mukhopadhaya) Chairperson

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

(Kanthi Narahari) Member(Technical)

NEW DELHI 24th July, 2019 AR

Company Appeal (AT) (Insolvency) No. 720 of 2018