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Posco International Corporation vs Mohana Cotton Ginning Private Limited

National Company Law Appellate Tribunal27 August 2026

Ratio decidendi

The rule this decision rests on

An arbitration clause in the underlying commercial contract does not bar a financial or operational creditor from invoking the statutory remedy under Section 9 of the Insolvency and Bankruptcy Code; the arbitration agreement is a private remedy and cannot supersede or cloud the statutory rights conferred by the Code. A claim for an amount agreed to be paid in respect of goods supplied under a contract is an operational debt within Section 5(21) of the Code, and a creditor to whom such a debt is owed is an operational creditor within Section 5(20), even where the creditor is the supplier-side party itself and the amount arises from a settlement of quality disputes relating to those goods. A dispute first raised by the corporate debtor in its reply to a demand notice under Section 8 does not, without more, constitute a pre-existing dispute; where no dispute has been raised or determined before any adjudicatory forum prior to the demand notice, and the claimed dispute is not shown to be a genuine, substantiated one, an application under Section 9 cannot be rejected on that ground.

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

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL AT CHENNAI (APPELLATE JURISDICTION) TA (AT) No.205/2021 (Company Appeal (AT) (Ins) No.1228/2019) (IA No.3570/2019) In the matter of: M/s Posco International Corporation (Formerly known as Posco Daewoo Corporation) Having its principal office at 165, Convensia-daero Yeonsu-gu Incheon, 21998, Korea ... Appellant

V

M/s Mohana Cotton Ginning Private Limited A company incorporated under the Companies Act, 1956 Having its registered office at D.No.3-153, Garapadu (Post) Vatticherukuru (Mandal), Guntur District, Krishna Andhra Pradesh - 522017 ... Respondent

Present : For Appellant : Mr. Kartikeya Jaiswal, Advocate For Ms. Anusha Peri, Advocate For Respondent : No Appearance

JUDGMENT

(Hybrid Mode)

[Per: Justice Sharad Kumar Sharma, Member (Judicial)]

The Appellant, is an applicant to the proceedings under Section 9 of I&B

Code, which stood rejected by the impugned order dated 11.09.2019, as it was

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 1 of 18 passed by the Learned NCLT, Amaravati Bench, in TCP(IB) No.50/9/AMR/2019

(CP(IB) No.285/9/HDB/2018).

2. The Respondent was noticed. They had put an appearance, and

initially they had contested the proceedings, but ever since 19.02.2025, none have

appeared for the Respondent. Even today, despite of repeated calls, none appears

for the Respondent. Hence we have got no other option except to proceed to hear

the Company Appeal itself on its merits.

3. Brief facts, which could be culled out from the records of the

Company Appeal are that, the Appellant is an international trading company, and

it executed a contract with the Respondent for supply of 300 Metric Tonnes of

Indian raw cotton Grade SLM, valued at a invoice value of USD 453,177.57 to

M/s. Ada Fios in Portugal and consequent to it, executed an international

shipment contract on 16.12.2016, with the Respondent.

4. The Appellant contends that, during the execution of the contract,

disputes arose between the parties pertaining to the quality of 291 Metric Tonnes

of goods supplied by the Respondent and consequently, the parties agreed to settle

the controversy in which the Respondent was to pay an amount of USD 74,342

to the Appellant.

5. Its upon the aforesaid settlement, the appellant on 30.06.2017, raised

a debit note in the name of the Respondent, the Corporate Debtor for USD 74,342,

which was acknowledged by the Corporate Debtor / Respondent vide its

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 2 of 18 correspondence of 28.07.2017, admitting their liability. The relevant portion of

the said e-mail by the Respondent is extracter hereunder:-

Sir we need to wait till we get the permission. Or else just check with your management if you are able to remit the amount from your side and in the due course mohana as committed with remit funds to you upon the approval obtainment. As we are not closing our relation I believe.

6. The Appellant contends that this communication of 28.07.2017,

made by the Respondent, will amount to be an acknowledgment of the amount

due to be paid and a tacit acceptance of the debt payable by it.

7. Subsequent to this, the Appellant, in order to fully and finally settle

the dispute and to record the terms on which the said amount of USD 74,342 was

to be paid by the Respondent, entered into a settlement agreement, bearing

Reference No. PDCMOHANA20170901 with the Respondent on 01.09.2017.

As per this settlement agreement, the Respondent had undertaken to pay the said

amount to the Appellant by 20.09.2017, failing which it was liable to pay the

default interest at the rate of 15% per annum, till the actual date of payment. The

said terms are recorded in Clause I (1) & (2) of the settlement agreement.

8. It's the email communication of 28.07.2017 and the settlement

agreement dated 01.09.2017, which has been taken by the Appellant as to be the

basis for institution of the proceedings under Section 9 of the I&B Code, before

the Learned Adjudicating Authority, because of the fact that, the last cut-off date

for remittance of the amount under the settlement that, was fixed for 20.09.2017,

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 3 of 18 had lapsed, and still the Respondent, who was to pay the amount as per the terms

of the settlement agreement, did not pay the amount.

9. Despite the assurance made from time to time by the Respondent to

pay the amount, the Respondent continued to default in payment of the same,

which had necessitated the Appellant to issue two notices on 03.11.2017 and on

07.11.2017, calling upon the Respondent to pay the said amount which the

Appellant claimed as unpaid operational debt. The aforesaid two notices

remained un-responded by the Respondent, which the Appellant claims to be an

acknowledgement of debt because the Respondent did not contest the notices and

that it will also amount to be an admission of liability by the Respondent.

10. Thereafter, the Respondent had issued two Emails on 07.12.2017 to

the Appellant, in which too the Respondent had acknowledged the existence of a

debt and had assured to remit the amount at the earliest, by stating that, they were

anticipating for certain approvals, and upon the completion of the necessary

formalities, they would be making the payment of 73,000 USD plus amend

charges. This communication of 07.12.2017, would yet again amount to be an

admission by the Respondent of their liability, as would be apparent from its

contents which are extracted here under:

We are only liable to Portugal claim and Phungphu claims. We will and shall not allow to remit the balance payments as stated by you. If you threaten us about sharing the internal business issue to organisations you mentioned we also need

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 4 of 18 to look for legal angle against PDC damages done to us along with breach of general agreement.

We once again inform that we are waiting for certain approvals and we shall do the payment of 73000+ Amend charges. If you want to cut the string and let it loose its completely upto your state. We are already facing issues in pakistan market due to that Rehan Shoukat and your way of handled things and we shall also go in the same way with Posco to canvas what you have done to us.

11. When there was no positive action by the Respondent to remit the

amount, the Appellant sent a legal notice on 22.01.2018, demanding payment of

various amounts including the unpaid operational debt of USD 74,342 in respect

of ADA FIOS contract. In the said legal notice, stating that certain payments /

claims came to be admitted to be due to the clients, namely ADA FIOS,

PHUNGPHU and CA Textile Mills on account of issues pertaining to the quality

of cotton and weight of the cotton supplied and that the said amounts are due and

payable by the Respondent, the Appellant demanded payment of a total amount

of USD 128,845.48 plus interest calculated at 15% per annum on the unpaid debt

of USD 74,342 up to the date of payment. Vide the said legal notice, the Appellant

intimated about its intention to initiate the available legal proceedings, including

the initiation of the CIRP, or as well as the arbitration proceedings against the

Respondent, if the demanded amount is not paid within 7 days of the receipt of

the said notice.

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 5 of 18

12. Since the Respondent did not respond to aforesaid legal notice and

did not make the payment as demanded, the Appellant proceeded to issue a

demand notice under Section 8 of the Code on 12.02.2018, giving the detailed

narration of the debt due to be paid, being USD 74,342 and the details of

transactions leading to the debt and the date of default, along with the copies of

shipment contract, settlement agreement and the debit note executed by the

Appellant. The Respondent instead of satisfying the demand raised in the demand

notice under Section 8 of the Code, replied to the said demand notice vide its

letter dated 22.02.2018 stating that even though it has entered into the settlement

agreement dated 01.09.2017 and has agreed to pay USD 74,342 to the Appellant,

it is not liable to pay any amount because the Appellant has breached the terms

of the Purchase Agreement dated 10.10.2016 by contacting its buyers directly and

soliciting business from them, thereby causing loss to the Respondent and hence

the Appellant, instead, is liable to pay an amount of USD 22,005 to the

Respondent, after adjusting the unpaid debt of USD 74,342/-.

13. Under these circumstances, the Appellant states that it was

constrained to file the Company Petition, being CP(IB)/285/9/HDB/2018, on

04.04.2018 praying for initiation of CIRP as against the Corporate Debtor /

Respondent for a debt of 74,342 USD, which became payable by the Corporate

Debtor, to the Appellant in terms of the settlement agreement, and which was

defaulted on 20.09.2017.

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 6 of 18

14. Notices were issued on 06.07.2018 on the proceedings under Section

9 of I&B Code, in which the Respondent filed their reply on 19.07.2018 making

vague assertions pertaining to the sustainability of the proceedings, on the ground

that, there happens to be a pre-existing dispute, which, the Appellant contends,

were raised for the first time without establishing the same. Pleadings were

exchanged and written submissions were preferred by the parties.

15. It is at a belated stage of the Section 9 proceedings, that certain

additional documents were served on the Appellant by the Respondent, through

a memo dated 11.09.2018, and the same was filed before Learned NCLT only on

27.11.2018 after several specific orders by Learned NCLT and that too,

unsupported by an affidavit. The said affidavit was later on supplied in December

2018. After the exchange of pleadings, the application under Section 9 of the

Code was rejected by the impugned order dated 11.09.2019 passed by the

Tribunal. Hence the Company Appeal.

16. The Learned Counsel for the Appellant has submitted that, the very

basis taken by the Learned Tribunal for dismissing the application under Section

9 of the Code, particularly in relation to the settlement agreement dated

01.09.2017, is that there was certain dispute between the parties, regarding the

quality of goods, supplied in between 15.03.2017 and 13.04.2017 in relation to

one of the purchase agreement of 10.10.2016, and that the said dispute should

have been addressed by invoking arbitration proceedings as was agreed between

the parties instead of invoking jurisdiction of NCLT, that non-payment of an

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 7 of 18 unpaid operational debt is a private dispute and it does not merit proceedings

under Section 9 of IBC, that the Appellant, not having supplied any goods or

services to the Respondent, does not fall within the definition of an 'Operational

Creditor' and there were pre-existing disputes which will not permit admission of

the Section 9 application. He has further contended that after exchange of the

pleadings, the Learned Tribunal had proceeded to formulate the following issues:

i) Whether the petition is maintainable?

ii) Whether the respondent owed USD 74,342 as corporate debt to the petitioner?

iii) Whether the respondent defaulted in payment of such debt?

iv) Whether the respondent after receipt of the demand notice, brought to the notice of the petitioner the pre- existence of a dispute?

v) Whether the petition needs to be admitted?

and had erroneously proceeded to conclude that the Section 9 application is not

maintainable on account of pre-existing dispute.

17. We would be more concerned as regards to the finding recorded, on

issue no. 1 & 4, which has been derived by the Learned Tribunal as to be the

reason for rejecting the application under Section 9 of the Code. The Learned

Counsel for the Appellant has argued that, in all international shipment contracts,

invariably a clause is provided for settlement of disputes through an arbitration

mode and therefore a clause for arbitration was provided in the present contracts

between the parties, that mere existence of such clause in these agreements, will

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 8 of 18 not preclude a creditor's remedy under the Code and as long as there is a debt of

more than Rs. 1 Lakh and there is a default and the threshold requirement is met,

the Appellant is entitled to seek initiation of CIRP. He has contended that Learned

NCLT wrongly took a view that since the settlement agreement of 01.09.2017

showed the existence of certain disputes with regards to the quality of the goods,

the matter has to be settled through arbitration route and not through the

provisions of the Code because the said dispute stood settled in form of an

agreement to pay USD 74,342/- and it has been acknowledged by the Respondent

from time to time, without disputing its quantum and payability.

18. The Appellant has further contended that, Learned NCLT has erred

in holding that initiation of CIRP is for benefit of all creditors and not for the

benefit of the Appellant alone as the dispute on hand is in personam and as per

the ratio laid down by Hon'ble Apex Court in B002 Allen and Hamilton Inc. Vs.

SBI Home Finance Limited & Ors (2011) 5 SCC 532, such disputes are to be

settled through arbitration route as provided in the agreements and not through

adjudication under the Code. He has submitted that Learned NCLT erred in

holding that the Appellant was required to produce evidence that the Respondent

owed payment to other creditors which is not envisaged under the Code.

19. The Respondent has submitted to contrary that he has given a notice

of dispute through his reply to the demand notice, that he had agreed to pay the

amount as per the settlement agreement and had countersigned the debit note in

view of continuing business relations and that cannot be taken as admission of

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 9 of 18 liability, that he has raised the dispute in which the Appellant is liable to pay

damages and substantiated the same by placing relevant documents which has to

be addressed through arbitration and hence the Section 9 petition is not

maintainable.

20. Learned Tribunal has taken the view in the impugned order that,

since the notice under Section 8 of the Code, was somehow touching the question

of quality of goods supplied and of a failure to honour the terms of the agreement,

it is a pre-existing dispute which has to be addressed through the arbitral clause,

provided in the agreements and the matter could not have been agitated under

Section 9 of the Code. Learned Tribunal further held while deciding the issue no.

1 & 4, that the reply to the demand notice of 12.02.2018 has been given by the

Respondent on 22.02.2018, that is, within the stipulated 10 days period and in the

said reply, the Respondent has brought to the notice of the Appellant, the

existence of the dispute concerning non-adherence to the terms of the contract /

purchase agreement, as well as, subsequent shipment agreement of 16.12.2016,

and the said fact establishes existence of a pre-existing dispute, which was

subsisting prior to the issuance of the demand notice on 12.02.2018, and hence

the Section 9 petition is not maintainable.

21. So far, the finding recorded on issue No. 2, 3 & 5 are concerned, we

are of the view that, at this stage we need not have to go into it on merits, because

it is not in dispute that the amount due to be paid was an operational debt, and

further it is not in dispute that the amount mentioned in the notice has fallen due

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 10 of 18 to be paid, and that the said amount was in default. As far as the status of the

Appellant is concerned, Learned NCLT has held that the Appellant is not an

Operational Creditor because the Appellant has never supplied any goods nor

services to the Respondent and therefore the amount claimed will not fall to be

within the operational debt under the Code.

22. We proceed to deal with the issues raised by the Appellant while

challenging the impugned order one by one. The finding which has been recorded

by the Learned Tribunal in para-10 of the impugned order about the effect of the

existence of an arbitral clause, taking it as to be creating a hurdle in invocation of

the proceedings under Section 9 of the Code is an absolute misinterpretation of

the settled law for the reasons extended hereafter. It is not in doubt that remedy

under arbitration is a remedy, which has been settled between the parties on the

basis of the unanimity of thought and expression given in the shape of a

arbitration clause and that is exclusively a personal arrangement by consensus,

made between the two contracting parties, which are acceptable to them, the

invocation of which would only be subject to satisfying the conditions under the

terms of the contract. Given the fact that, the existence of an arbitration clause,

as already observed by us is a private legal remedy and is not statutorily

prescribed under law to be mandatorily resorted too, any arrangement for

resolving of a dispute by way of an arbitration clause which is a private legal

remedy, will not deprive the Appellant to invoke a statutory remedy, which is

otherwise reserved to the party, under the intention of law to be availed by person,

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 11 of 18 who seeks to recover the defaulted amount, which is due to be paid. The said

principle has been laid down by the Principal Bench, in Company Appeal (AT)

(Ins) No. 802/2020 Hasan Shafiq Vs. CT Technologies, where the aforesaid

ratio has been dealt with the Para 19 of the Judgment, which is extracted here

under:

19. In the present case, the debt and default is fully admitted.

The Adjudicating Authority has also observed that even the date of defaults has not been disputed by the Corporate Debtor by filing any reply to Section 9 Application. We, thus, conclude that Application under Section 9 of the Code was fully maintainable and could not have been thrown out on the ground that there was a clause in Agreement dated 25th March, 2012. Despite there being clause of arbitration in Agreement, Application under Section 9 was fully maintainable and could be proceeded with by Adjudicating Authority. The proceedings under Code having been given overriding effect, the right to initiate Application under Section 9 shall not be taken away by the Operational Creditor by any Agreement of arbitration in the contract, when Operational Creditor elect to initiate proceedings under Section 9, it cannot be rejected on the aforesaid ground. We, thus, do not find any substance in the above submission of learned Counsel for the Appellant.

23. Almost a similar view was taken by the Hon'ble Apex Court, while

dealing with the identical issue as to whether a statutory remedy under I&B Code

can be resorted to when a private remedy of an arbitration clause, as settled

between the parties is already available and has been initiated. The aforesaid issue

was settled by the Hon'ble Apex Court in the matters of Indus Biotech Pvt Ltd

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 12 of 18 Vs. Kotak India Venture (Offshore) Fund & Ors. as reported in 2021 Vol 6

SCC Page 436. The relevant Para 27 is extracted here under:

27. As noted, the issue which is posed for our consideration is arising in a petition filed under Section 7 of IB Code, before it is admitted and therefore not yet an action in rem. In such application, the course to be adopted by the adjudicating authority if an application under Section 8 of the 1996 Act is filed seeking reference to arbitration is what requires consideration. The position of law that the IB Code shall override all other laws as provided under Section 238 of the IB Code needs no elaboration. In that view, notwithstanding the fact that the alleged corporate debtor filed an application under Section 8 of the 1996 Act, the independent consideration of the same dehors the application filed under Section 7 of IB Code and materials produced therewith will not arise. The adjudicating authority is duty-bound to advert to the material available before him as made available along with the application under Section 7 of IB Code by the financial creditor to indicate default along with the version of the corporate debtor. This is for the reason that, keeping in perspective the scope of the proceedings under the IB Code and there being a timeline for the consideration to be made by the adjudicating authority, the process cannot be defeated by a corporate debtor by raising moonshine defence only to delay the process. In that view, even if an application under Section 8 of the 1996 Act is filed, the adjudicating authority has a duty to advert to contentions put forth on the application filed under Section 7 of IB Code, examine the material placed before it by the financial creditor and record a satisfaction as to whether there is default or not. While doing so the contention put forth by the corporate debtor shall also be noted to determine as to whether there is substance in the defence and to arrive at the conclusion whether there is default. If the irresistible conclusion by the adjudicating authority is that there is default and the debt is payable, the bogey of arbitration to delay the process would

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 13 of 18 not arise despite the position that the agreement between the parties indisputably contains an arbitration clause.

24. In the aforesaid case, arbitration clause had already been invoked

and even then, Hon'ble Apex Court held that it is perfectly valid to admit Section

7 application even when arbitration route has been taken, provided debt and

default are established. Hence the conclusion drawn by Learned NCLT that

availability of arbitration clause in a dispute between the parties, would debar the

Appellant from exercising his statutory rights as protected by law, is not

acceptable to us, as the remedies available to the Appellant under the statute

would still be a remedy available to the Appellant to be left open for the Appellant

to be resorted to, irrespective of their private settlement rights as agreed between

the parties for invocation of arbitration clause. We hold that Arbitration Clause

under the contract will not supersede or override or create a cloud over a statutory

rights bestowed by the Code upon the Appellant. Hence, this question is answered

in favour of the Appellant.

25. The second question, that falls for consideration before us is as to

whether the Appellant would be falling within the ambit of an Operational

Creditor, as per the definition contained under Section 5 (20) of I&B Code for the

purpose of invoking Section 9 of the Code. Section 5 (20) of I&B Code is

extracted here under:

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 14 of 18

(20) operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred;

26. If we read the definition of Operational Creditor, on its simpliciter

reading of the language of the Operational Creditor, it simply refers to a person

to whom an Operational Debt, is owed, including persons to whom such debt has

been legally assigned or transferred. Thus the basic element required to be

satisfied to be classified as an Operational Creditor as per Section 5 (20) of the

Code, is that the debt owed to him has to be in nature of an operational debt,

which is a claim arising out of provision of goods, services, employment or govt

dues. Learned Tribunal held the Appellant to be 'not an Operational Creditor' on

the grounds that, he didn't provide any goods and services to the Corporate

Debtor. However this is absolutely contrary to the facts because as per terms of

the contract and the settlement agreement, it clearly stated that the parties were

engaged in the transaction of supply of raw cotton, which amounts to provision

of the goods, as per Section 5 (21) of the I&B Code and therefore the amount that

fell due to be paid in the course of such transaction will have to assume the

character of operational debt. If we look into the settlement agreement dated

01.09.2017, the contents of the said agreement clearly state that, the basis of the

claim between the parties was on account of certain disputes in relation to the

goods that were supplied. In that view of the matter, and in the light of the

definition given under Section 5 (21) of the Operational Debt, the amount agreed

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 15 of 18 to be paid by the Respondent which arose of supply of the goods between the

parties, will have to be treated as an Operational Debt and since it was due to be

paid to the Appellant, he will have the status of an Operational Creditor, which

would entitle him to invoke the proceedings under Section 9 of the I&B Code.

The aforesaid principle has already been settled in the matters of Consolidated

Construction Consortium Ltd Vs. Hitro Energy Solutions Pvt Ltd. reported

in 2022 Vol 7 SCC Page 164. The relevant finding as recorded in Para 52 of the

said judgment, which is extracted here under:

52. Similarly, in the present case, the phrase "in respect of"

in Section 5(21) has to be interpreted in a broad and purposive manner in order to include all those who provide or receive operational services from the corporate debtor, which ultimately lead to an operational debt. In the present case, the appellant clearly sought an operational service from the proprietary concern when it contracted with them for the supply of light fittings. Further, when the contract was terminated but the proprietary concern nonetheless encashed the cheque for advance payment, it gave rise to an operational debt in favour of the appellant, which now remains unpaid. Hence, the appellant is an operational creditor under Section 5(20) IBC.

27. Thus on a simpliciter reading and considering the interplay of the

definition of an Operational Creditor under Section 5 (20) and Operational Debt

under Section 5 (21), as framed by the legislature, it clearly intended that when it

use the language "claim in respect of" , it was extending the ambit of the

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 16 of 18 intentions expressed to define an Operational Creditor and the interpretation of

the same cannot be restricted to be applied.

28. Now we proceed to deal with the finding that has been recorded by

the Learned Tribunal with regards to the pre-existing dispute. Learned Tribunal

had held that there was a pre-existing dispute because the same was intimated to

the Appellant by the Respondent in his reply to the demand notice and that the

communications between the parties did establish the existence of such a dispute

regarding breach of purchase agreement and the subsequent claim of damages by

the Respondent and as per the ratio of Mobilox, pre-existing dispute is established

and therefore Section 9 petition is not maintainable. However the same Mobilox

enjoins Learned Tribunal to ensure that "the dispute as claimed is not a patently

feeble legal argument or an assertion of fact unsupported by evidence". In the

instant case, the bundle of communications, which had taken place inter-se

between the parties, prior to the issuance of demand notice on 12.02.2018, did

refer the existence of certain claims inter-se between the parties, but as a matter

of fact, there is nothing brought on record by the Respondent to show that, actual

dispute was ever agitated before any other adjudicatory platform for deciding it.

Further, the notice of the said alleged dispute was given for the first time by the

Respondent in his reply to the demand notice, apart from a stray email he had

produced before Learned NCLT and therefore as per the judgement of this

Appellate Tribunal in the matter of Raakesh B Kulwal Vs. Param Dairy Limited

in CA (AT) (Ins) No. 1013/2025 dated 30.06.2026, dispute raised after serving of

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 17 of 18 demand notice will not qualify to be a pre-existing dispute. Given the fact that

there was no dispute raised by the Respondent or even by the Appellant, which

required any determination by a Court or a Tribunal or an arbitral forum, the

dispute as agitated in the demand notice under Section 8 cannot be treated as a

pre-existing dispute and consequentially filing of Section 9 application cannot be

said to be bad in law on the ground of a pre-existing dispute. Thus the finding

recorded on the same being perverse is un-acceptable by us. In that view of the

matter, the impugned order is quashed, and the Company Appeal is allowed.

The Learned Tribunal is directed to admit the application under Section 9

of I&B Code and to proceed further in accordance with law, after the imposition

of moratorium.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Jatindranath Swain] Member (Technical)

27/08/2026 YS/MS/AK

TA (AT) No.205/2021 (CA (AT) (Ins) No.1228/2019) Page 18 of 18

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