Application For Initiating CIRP Has To Be Rejected If A Dispute Truly Exists In Fact And Is Not Spurious, Hypothetical Or Illusory
Case: Kay Bouvet Engineering Ltd. vs Overseas Infrastructure Alliance (India) Private Limited
Coram: Justices RF Nariman and BR Gavai
Case No: CA 1137 OF 2019
Court Observation: “Perusal of the aforesaid provisions would reveal that an “Operational Creditor”, on the occurrence of default, is required to deliver a “Demand Notice” of unpaid “Operational Debt” or a copy of invoice, demanding payment of amount involved in the default to the “Corporate Debtor” in such form and manner as may be prescribed. Within 10 days of the receipt of such “Demand Notice” or copy of invoice, the “Corporate Debtor” is required to either bring to the notice of the “Operational Creditor” “existence of a dispute” or to make the payment of unpaid “Operational Debt” in the manner as may be prescribed. Thereafter, as per the provisions of Section 9 of the IBC, after the expiry of the period of 10 days from the date of delivery of notice or invoice demanding payment under subsection (1) of Section 8 and if the “Operational Creditor” does not receive payment from the “Corporate Debtor” or notice of the dispute under sub section (2) of Section 8 of the IBC, the “Operational Creditor” is entitled to file an application before the adjudicating authority for initiating the Corporate Insolvency Resolution Process.”
“It could thus be seen that this Court has held that one of the objects of the IBC qua operational debts is to ensure that the amount of such debts, which is usually smaller than that of financial debts, does not enable operational creditors to put the corporate debtor into the insolvency resolution process prematurely or initiate the process for extraneous considerations. It has been held that it is for this reason that it is enough that a dispute exists between the parties.”
“It is thus clear that once the “Operational Creditor” has filed an application which is otherwise complete, the adjudicating authority has to reject the application under Section 9(5)(ii)(d) of IBC, if a notice has been received by “Operational Creditor” or if there is a record of dispute in the information utility. What is required is that the notice by the “Corporate Debtor” must bring to the notice of “Operational Creditor” the existence of a dispute or the fact that a suit or arbitration proceedings relating to a dispute is pending between the parties. All that the adjudicating authority is required 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 a mere bluster. It has been held that however, at this stage, the Court is not required to be satisfied as to whether the defence is likely to succeed or not. The Court also cannot go into the merits of the dispute except to the extent indicated hereinabove. It has been held that so long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has no other option but to reject the application.”
“In these circumstances, we find that NCLT had rightly rejected the application of Overseas after finding that there existed a dispute between Kay Bouvet and Overseas and as such, an order under Section 9 of the IBC would not have been passed. We find that NCLAT has patently misinterpreted the factual as well as legal position and erred in reversing the order of NCLT and directing admission of Section 9 petition.”
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Keywords
CIRP, Supreme Court, CIRP Proceeding, Application CIRP.
