2021 (2) TMI 1222 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Jurisdiction - time limitation - HELD THAT - The date of default is 19.03.2018 that is the date of the last invoice issued which was unpaid and the present application is filed on 20.05.2019. Hence the application is not time barred and filed within the period of limitation. Jurisdiction - HELD THAT - The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application. Disputes existing prior to the issuance of the Demand Notice - HELD THAT - The dispute must exist before the receipt of demand notice or invoice. Be that as it may on appraisal of the arguments advanced by the Ld. Counsels it emerges that there were disputes existing prior to the issuance of the Demand Notice - A pre-existing dispute does not entitle the Operational Creditor to seek Insolvency Resolution of the Corporate Debtor. Whether the Operational Creditor is entitled to seek recovery of the amount of balance USD 2, 28, 079 out of the total USD 3, 77, 392.00 as set off by the Corporate Debtor through issuance of Debit Notes is not for the consideration of this Bench. However the Applicant has the option to file a Civil suit before the appropriate forum for the recovery of the same. This Bench is of the view that the prayer for initiating Corporate. Insolvency Resolution process against the Corporate Debtor is not sustainable - Application rejected.

Summary

Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Existence of pre-existing disputes between the Operational Creditor and Corporate Debtor.
3. Compliance with procedural requirements under Section 9(3)(c) of the Code.
4. Jurisdiction and limitation period for filing the application.

Issue-wise Detailed Analysis:

1. Initiation of Corporate Insolvency Resolution Process (CIRP):
The application was filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 by the Operational Creditor, Henan Boom Gelatin Co. Ltd., seeking initiation of CIRP against the Corporate Debtor, Sunil Healthcare Limited, for non-payment of USD 3,77,392.00. The Operational Creditor supplied Pharmaceutical Grade Gelatin to the Corporate Debtor under specific sales contracts and invoices. The Corporate Debtor failed to make the payment within the agreed credit period, leading to the issuance of a Demand Notice under Section 8 of the Code.

2. Existence of Pre-existing Disputes:
The Corporate Debtor contended that there were pre-existing disputes regarding the quality and delay in the supply of gelatin, which were communicated to the Operational Creditor before the issuance of the Demand Notice. The Tribunal found that the disputes were indeed communicated via emails dated 04.05.2018 and 30.07.2018, which were acknowledged by the Operational Creditor. The Tribunal referred to the Supreme Court's decision in "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited," which emphasized that the existence of a dispute must be pre-existing before the receipt of the demand notice. The Tribunal concluded that a pre-existing dispute was evident and thus, the Operational Creditor could not seek insolvency resolution.

3. Compliance with Procedural Requirements:
The Corporate Debtor argued that the application should be dismissed due to the incomplete Form 5 and the absence of a proposed Interim Resolution Professional (IRP). Additionally, the Corporate Debtor claimed that the authorization to file the application was not properly notarized or apostilled. The Tribunal noted these procedural issues but focused primarily on the pre-existing dispute to reject the application.

4. Jurisdiction and Limitation Period:
The Tribunal confirmed that the application was filed within the limitation period, as the date of default was 19.03.2018 and the application was filed on 20.05.2019. The Tribunal also confirmed its jurisdiction to entertain the application, as the registered office of the Corporate Debtor is situated in Delhi.

Conclusion:
The Tribunal concluded that the existence of a pre-existing dispute barred the Operational Creditor from initiating the Corporate Insolvency Resolution Process against the Corporate Debtor. The Tribunal rejected the application but mentioned that the Operational Creditor could pursue recovery of the balance amount through a civil suit in an appropriate forum. The application for initiating CIRP was thus dismissed and disposed of in terms of the order.