9911796707
TMI Blog2024 (10) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... nkruptcy (Application to Adjudicating Authority) Rules, 2016 and Rule 11 of NCLT Rules, 2016 before this Hon'ble Tribunal seeking initiation of CIRP proceedings against the Corporate Debtor. 3. The Operational Creditor/Petitioner contends that it has been legally assigned an operational debt of Rs. 48,59,146 (rupees forty-eight lakhs, fifty- nine thousand, one-hundred and forty-six only) by Sh. Surinder Kohli (brother) and Rs. 48,59,146 (rupees forty-eight lakhs, fifty-nine thousand, one-hundred and forty-six only) by Smt. Neeru Kohli (wife) vide assignment deed dated 17.08.2021. Therefore, being an Operational Creditor as defined under Section 5(20) of Insolvency and Bankruptcy Code, 2016 as a part of debt is owed by him personally and he is also assignee of debt from other Operational Creditors, had instituted the subject petition seeking to initiate CIRP against the Corporate Debtor. 4. The Operational Creditor had leased out the premises situated at Industrial Shed No. 41, Industrial Area, Phase-II, Chandigarh to the Corporate Debtor vide lease agreements dated 20.01.2016 and 11.09.2016 at monthly rent of Rs. 8,00,000/- (rupees eight lakhs only). The leased premises inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon by the applicant was terminated w.e.f. August 2020. Vide notice dated 10.10.2020, the possession of property was offered by the Corporate Debtor to the Operational Creditor, so the Operational Creditor had no occasion to raise invoices beyond July 2020. Invoices post-July 2020 were received for the first time by the Corporate Debtor along with the demand notice. The Applicant/Appellant has fabricated invoices to meet the threshold stipulated for filing the petition under the IBC. The invoices after July 2020 attached as part of Exhibit 'B', Exhibit 'C' and Exhibit 'D' are fake, self-serving and have never been served as the premises stood vacated on the instructions of the lessors w.e.f. 1st August 2020. If the amount claimed under these fabricated invoices from August 2020 to July 2021 is subtracted, the alleged debt does not meet the prescribed threshold of rupees one crore. A complaint to SSP has already been made against the Operational Creditor for fabrication of invoices. The petition is defective, as the bank statement for the relevant period has been intentionally concealed, i.e., statement before July 2018. By doing so, the Applicant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are duly cleared. 8. There is a pre-existing dispute between the parties and the Corporate Debtor received the demand notice on 14.06.2021, which was responded on 22.06.2021 and in the said reply, Corporate Debtor highlighted the objections and established that there existed a pre-existing dispute in respect of the agreement to lease. In this regard, various proceedings were undertaken even before the police authorities. The Operational Creditor had also filed complaints with the police authorities vide letter dated 04.12.2020, alleging fraud on the part of Corporate Debtor and thereafter vide letter dated 21.01.2021 alleging trespass. 9. Both the parties appeared before the inquiry officer where the Corporate Debtor offered keys and joint inspection of the premises, to which the Operational Creditor refused. 10. Without a valid GST No., the GST invoices could not have been raised and the Corporate Debtor suffered a loss of Rs. 27,79,935/- (rupees twenty- seven lakhs, seventy-nine thousand, nine-hundred and thirty-five only) on account of non-deposit of GST by the Operational Creditor for the period till July, 2020. 11. It was agreed between both parties to waive the rent for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... using a huge loss of the input credit to the Corporate Debtor. Therefore, the Corporate Debtor was constrained to shift the premises urgently. Thereafter, the Corporate Debtor wrote a letter dated 01.06.2023 to the GST authorities to confirm the authenticity of invoices raised by the Operational Creditor, which the Corporate Debtor had never received. In response to the said letter, GST authorities, vide letter dated 26.06.2023, confirmed that the invoices in the subject matter of the present dispute are forged and the tax collected from Corporate Debtor has not been deposited since the year 2018. The Operational Creditor was not entitled to raise any GST invoices since GST number stands cancelled. Thus, the invoices themselves are non-est in the eyes of law. The importance of GST compliance as proof of the genuineness of the invoices is apparent from the amendment brought about in Rule 7 of The Insolvency and Bankruptcy Board of India (Insolvency Resolution for Corporate Persons) Regulations, 2016 which provides for copies of the relevant extracts of Form GSTR-1 and Form GSTR-3B and copy of e-way bill as proof of claim. The Corporate Debtor demanded GST returns from Operational Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings do not constitute a pre-existing dispute, as the matter was settled with the delivery of possession. Furthermore, the Appellant highlights that the Corporate Debtor has not paid the outstanding rent, which qualifies as an operational debt under the definition provided by the Code. The Appeal argues that the Adjudicating Authority's Order was flawed and requests a review of the decision. 18. We have heard the Appellant and perused all documents on record. 19. The core issue before this Appellate Tribunal is whether a pre-existing dispute existed between the parties at the time of filing the Section 9 Petition, which would bar the initiation of Corporate Insolvency Resolution Process (CIRP) under the Code. 20. The pleadings from both parties reveal that disputes existed long before the Section 8 demand notice was issued on 10.06.2021 concerning the debt amount claimed by the Petitioner. This is evident from several events, which have been noted by the Adjudicating Authority in its order dated 01.03.2024 in IA No 2171/ 2023 and CP(IB) No. 203/CHD/CHD/2021 and as indicated in the following paragraphs. 21. In a letter dated 27.10.2020, the Operational Creditor acknowledged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions Pvt Ltd vs Kirusa Software Pvt Ltd (2018) 1 SCC 353 wherein it was held: "40. It is clear, therefore, that once the Operational Creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the Application under Section 9 (5) (2) (d) if notice of dispute has been received by the Operational Creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the Operational Creditor the "existence" of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the "dispute" is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
