Shyson Thomas vs Skyways Technics A/S
- CitationCompany Appeal (AT) (Insolvency) No. 1033 of 2019
Ratio decidendi
The rule this decision rests on
The Adjudicating Authority is entitled to admit an application under Section 9 of the I&B Code where the corporate debtor has not, at the stage of receiving the demand notice under Section 8(1) or before the Adjudicating Authority, brought to notice any document evidencing a pre-existing dispute, so that no such dispute is shown to exist on the record. A document not relied upon by the corporate debtor before the Adjudicating Authority, or in response to the demand notice, cannot be used on appeal to establish a pre-existing dispute that would bar admission of an operational creditor's application. An order admitting a Section 9 application is not disturbed on appeal where the appellant's material does not establish a pre-existing dispute, and the appellant's right to seek settlement of the claim under Section 12A of the I&B Code remains unaffected by the admission.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Shyson Thomas ...Appellant
Vs
Skyways Technics A/S ....Respondent
Present: For Appellant: Mr. Aditya Sinha and Mr. Abhinav Agrawal, Advocates. For Respondent: Ms. Nandini Sharma, Advocate.
ORDER
14.10.2019: 'M/s Skyways Technics A/S, Lufthavnsvej 1B, 6400
Sonderborg, Denmark' (Operational Creditor) moved an application under
Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short 'I&B Code') for
initiation of Corporate Insolvency Resolution Process against 'M/s Air Pegasus
Private Limited' (Corporate Debtor). The Adjudicating Authority (National
Company Law Tribunal), Bengaluru Bench by impugned order dated 23rd
August, 2019 having admitted the application, the present appeal has been
preferred by the Director/ Shareholder of the Corporate Debtor.
2. Learned counsel for the Appellant submits that there is a pre-existing
dispute and also relied on one email dated 11th January, 2016. However, it is
accepted that the aforesaid document was not relied upon by the Appellant
before the Adjudicating Authority or when received the demand notice under
Section 8(1) of the I&B Code.
-2-
3. Ms. Nandini Sharma, learned counsel appearing on behalf of 'M/s
Skyways Technics A/S' (Operational Creditor) submits that the aforesaid
documents were never brought to the notice of the Operational Creditor or the
Adjudicating Authority. On the other hand, twenty-two adjournments were
taken on behalf of the Corporate Debtor to settle the matter. The Corporate
Debtor having failed to settle the matter for about one year, the Adjudicating
Authority, in absence of any documents related to existence of dispute, admitted
the application.
4. In the circumstance, we are not inclined to interfere with the impugned
order dated 23rd August, 2019. However, this order will not come in the way of
the Appellant to move application under Section 12A of the I&B Code to settle
the claim of the Creditors. The appeal stands disposed of with aforesaid
observations. No cost.
[Justice S. J. Mukhopadhaya] Chairperson
[Justice A. I. S. Cheema] Member (Judicial)
(Kanthi Narahari) Member (Technical) am/sk Company Appeal (AT) (Insolvency) No. 1033 of 2019
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