The Operational Creditor Should Provide the Prerequisites of Section 9 of IBC, 2016: NCLAT

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Introduction

The National Company Law Appellate Tribunal (NCLAT), Mumbai Bench, dated 23rd September 2020 rejected the petition filed by the operational creditor against Big Vision Water Tech Priv. Ltd. under Section 9 of the Insolvency and Bankruptcy Code, 2016. The court said that the appellant failed to provide the prerequisites of Section 9 under IBC, 2016.

Brief Facts

This is a Company Petition filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC), dated 7th June 2019, by Pankaj Modani (Operational Creditor), an individual, seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Big Vision Water Tech Private Limited (Corporate Debtor). The Corporate Debtor is a private company limited by shares and incorporated on 12th September 2013 under the Companies Act, 1956, Maharashtra, Pune. The case of the Operational Creditor is that he raised invoices on the Corporate Debtor towards professional fees for providing professional compliance services for October 2018. The Corporate Debtor was granted a credit period of one month after raising the invoice on 5th October 2018. The total debt due and payable to the Operational Creditor is stated to be Rs. 1,40,682.00 (Rupees one lakh forty thousand six hundred and eighty-two only). The Operational Creditor had served a Demand Notice dated 12th April 2019 to the Corporate Debtor in terms of section 8 of the IBC. The Corporate Debtor has not replied to the Demand Notice. The Corporate Debtor has not submitted any reply in the matter.

Arguments Before the Court

The appellant claimed that the Corporate Debtor failed to make payment of a sum of Rs. 1,29,000.00 (Rupees one lakh twenty-nine thousand only) as principal and Rs. 11,682.00 (Rupees eleven thousand six hundred and eighty-two only) as interest as on 5th November 2018, which is stated to be the date of default.

Analysis

The case has dealt with the provision of Section 9 of Insolvency and Bankruptcy Code, 2016.

Court’s Observation

The NCLT, Mumbai Bench, observed that:

  1. There is no record of any contractual arrangement between the Operational Creditor and the Corporate Debtor.
  2. There is no record of the invoice having been served on the Corporate Debtor.
  3. There is no record of what professional services have been rendered by the Operational Creditor.
  4. The pre-requisites of section 9 of the IBC have not been satisfied.

Court’s Decision

The Court observed and decided that the present petition fails and therefore, the same is rejected in terms of section 9(5)(ii)(c) of the IBC.

“We make it clear that any observations made in this order should not be construed as expressing an opinion on merits. The right of the petitioner before any judicial forum shall not be prejudiced on grounds only of dismissal of the present petition by this Adjudicating Authority.”


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