Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2020 (12) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (12) TMI 1175 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- The Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT], has inter alia, held that I&B Code, 2016 is not intended to be substitute to a recovery forum. The Code cannot be used prematurely or for extraneous considerations or reasons as a substitute for debt enforcement procedures. It is also not the purpose of the Code to put viable and profit making entities into insolvency for the recovery of debt. On perusal of the Invoices annexed to the Petition, it is seen that the invoices annexed are from 27.10.2014 to 10.08.2018. However, the amounts that fall within the period of limitation are approximately a sum of ₹ 4,89,849/- as the invoices from the period 06.02.2017 have to be considered for the purposes of calculating the amounts due. Further, the Debit Note dated 21.04.2017 annexed to the Statement of Objections for ₹ 29,02,650/- with a statement that the said debit note is issued on account of "Towards Debit for Rejection of cotton Trousers processed during the year 2015 and 2016 due to Silicon Stains - It is also seen that the two parties were continuously transacting between themselves till August 2018. Supplies were being made and part payments were being received, thereon from time to time. This means that the Petition filed by the Operational Creditor is only for the recovery of dues on the outstanding bills, that too on account of the dispute on the quality of goods supplied. This forum cannot be used for recovery On perusal of the audited balance sheet of the Corporate Debtor Company, it is clear that it is an ongoing concern with substantial turnover and therefore pushing a company with such revenue into CIRP will be an act contrary to the objects of the code. The Code aims at resolving the insolvency of a corporate debtor through the CIRP, and cannot be used done if the Corporate Debtor/ Respondent Company in question is not insolvent. This also makes it clear that when the Petitioner has filed this petition not to aid in resolving its debt and insolvency but with an intention to recover its dues. We are very clear that the intent and purpose this Tribunal is not recovery, and when no case of insolvency is made out against the Respondent Corporate Debtor, the provisions of section 9 of the Code cannot be attracted. Hence, in the presence of a pre-existing dispute in terms of the Code, 2016 before the issuance of Demand Notice dated 27.12.2019, no case is made out for admitting the Petition against a solvent and on-going concern. This is merely a Petition for recovery, and falls outside the ambit and objectives of the Code, 2016. Further, the Petitioner has claimed amounts due from 2014 which are clearly barred by limitation. However, this order under the IBC shall not come in the way of the Petitioner to seek recovery of dues, if any, in any other forum - Petition dismissed.
|