1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9405 OF 2017
Mobilox Innovations Private Limited … Appellant
Versus
Kirusa Software Private Limited … Respondent
J U D G M E N T
R.F. Nariman, J.
1. The present appeal raises questions as to the triggering
of the Insolvency and Bankruptcy Code, 2016 when it comes to
operational debts owed to operational creditors. The appellant
was engaged by Star TV for conducting tele-voting for the
“Nach Baliye” program on Star TV. The appellant in turn subcontracted
the work to the respondent and issued purchase
2
orders between October and December, 2013 in favour of the
respondent. In the “Nach Baliye” program, the successful
dancer was to be selected on various bases, including viewers’
votes. For this purpose, the respondent was to provide toll free
telephone numbers across India, through which the viewers of
the program could cast their votes in favour of one or more
participants. For this purpose, a software was customized by
the respondent, who then coordinated the results and provided
them to the appellant. Since the respondent obtained toll free
numbers from telephone operators in terms of the purchase
orders, the appellant was liable to make payment of rentals for
the toll free numbers, as well as primary rate interface rental to
the telecom operators. The respondent provided the requisite
services and raised monthly invoices between December, 2013
and November, 2014 – the invoices were payable within 30
days from the date on which they were received. The
respondent followed up with the appellant for payment of
pending invoices through e-mails sent between April and
October, 2014. It is also important to note that a non-disclosure
agreement (hereinafter referred to as the NDA) was executed
3
between the parties on 26th December, 2014 with effect from 1st
November, 2013.
2. More than a month after execution of the aforesaid
agreement, the appellant, on 30th January, 2015, wrote to the
respondent that they were withholding payments against
invoices raised by the respondent, as the respondent had
disclosed on their webpage that they had worked for the “Nach
Baliye” program run by Star TV, and had thus breached the
NDA. The correspondence between the parties finally
culminated in a notice dated 12th December, 2016 sent under
Section 271 of the Companies Act, 2013. Presumably because
winding up on the ground of being unable to pay one’s debts
was no longer a ground to wind up a company under the said
Act, a demand notice dated 23rd December, 2016 was sent for
a total of Rs.20,08,202.55 under Section 8 of the new
Insolvency and Bankruptcy Code, 2016 (hereinafter referred to
as the Code). By an e-mail dated 27th December, 2016, the
appellant responded to the aforesaid notice stating that there
exists serious and bona fide disputes between the parties, that
4
the notice issued was a pressure tactic, and that nothing was
payable inasmuch as the respondent had been told way back
on 30th January, 2015 that no amount will be paid to the
respondent since it had breached the NDA.
3. An application was then filed on 30th December, 2016
before the National Company Law Tribunal under Sections 8
and 9 of the new Code stating that an operational debt of
Rs.20,08,202.55 was owed to the respondent.
4. On 19th January, 2017, the respondent was orally
intimated to remove a defect in the application, in that it did not
contain the appellant’s notice of dispute. This was rectified by
an affidavit in compliance dated 24th January, 2017, by which
various other documents were also supplied by the respondent
to the Tribunal. On 27th January, 2017, the Tribunal dismissed
the aforesaid application in the following terms:
“On perusal of this notice dated 27.12.2016
disputing the debt allegedly owed to the petitioner,
this Bench, looking at the Corporate Debtor
disputing the claim raised by the Petitioner in this
CP, hereby holds that the default payment being
disputed by the Corporate Debtor, for the petitioner
has admitted that the notice of dispute dated 27th
5
December 2016 has been received by the
operational creditor, the claim made by the
Petitioner is hit by Section (9)(5)(ii)(d) of The
Insolvency and Bankruptcy Code, hence this
Petition is hereby rejected.”
5. An appeal was then filed before the National Company
Law Appellate Tribunal which was decided on 24th May, 2017.
This appeal was allowed in the following terms:
“39. In the present case the adjudicating authority
has acted mechanically and rejected the application
under sub-section (5)(ii)(d) of Section 9 without
examining and discussing the aforesaid issue. If the
adjudicating authority would have noticed the
provisions as discussed above and what constitutes
‘dispute’ in relation to services provided by
operational creditors then it would have come to a
conclusion that condition of demand notice under
sub-section (2) of Section 8 has not been fulfilled by
the corporate debtor and the defence claiming
dispute was not only vague, got up and motivated to
evade the liability.
40. For the reasons aforesaid we set aside the
impugned order dated 27.1.2017 passed by
adjudicating authority in CP No.01/I
&BP/NCLT/MAH/2017 and remit the case to
adjudicating authority for consideration of the
application of the appellant for admission if the
application is otherwise complete.
41. The appeal is allowed with the aforesaid
observations. However, in the facts and
circumstances there shall be no order as to cost.”
6
6. Shri Mohta, learned counsel on behalf of the appellant,
raised various contentions before us. According to learned
counsel, the application should have been dismissed on the
ground that the operational creditor did not furnish a copy of the
certificate from a financial institution, viz. IDBI in the present
case, that maintained accounts of the operational creditor,
which confirmed that there is no payment of any unpaid
operational debt by the corporate debtor under Section 9(3)(c)
of the Code. This being so, the application ought to have been
dismissed at the very threshold. Apart from this, the learned
counsel took us through various committee reports and the
provisions of the Code and argued that under Section 8 of the
Code, the moment a corporate debtor, within 10 days of the
receipt of a demand notice or copy of invoice, brings to the
notice of the operational creditor the existence of a dispute
between the parties, the Tribunal is obliged to dismiss the
application. According to him, under Section (8)(2)(a), the
expression “existence of a dispute, if any, and record of the
pendency of the suit or arbitration proceedings filed …” must be
read as existence of a dispute “or” record of the pendency of
7
the suit or arbitration proceedings filed, i.e. disjunctively.
According to the learned counsel, the definition of “dispute”
under Section 5(6) of the Code is an inclusive one and the
original draft bill not only had the word “means” instead of the
word “includes”, but also the word “bona fide” before the words
“suit or arbitral proceedings”, which is missing in the present
Code. Therefore, learned counsel argued that the moment
there is existence of a dispute, meaning thereby that there is a
real dispute to be tried, and not a sham, frivolous or vexatious
dispute, the Tribunal is bound to dismiss the application.
Learned counsel went on to argue that there is a fundamental
difference between applications filed by financial creditors and
operational creditors. A financial creditor’s application is dealt
with under Section 7 of the Code, in which the adjudicating
authority has to ascertain the existence of a default on the basis
of the records of an information utility or other evidence
furnished by the financial creditor. In contrast to this scheme,
all that a corporate debtor needs to do is to file a reply within a
period of 10 days of the receipt of demand notice or copy of
invoice from an operational creditor, showing the existence of a
8
dispute, which then does not need to be “ascertained” by the
adjudicating authority. He was at pains to point out that the
application itself must contain all the documents that are
required by the statute and that the timelines indicated in the
statute are mandatory. For this purpose, he referred us to
Sections 61, 62 and 64 in addition to Sections 7 to 9 of the
Code. Finally, on facts, according to learned counsel, the
Tribunal was wholly incorrect in remanding the matter on both
counts – first, to find out whether the application is otherwise
complete and, second, because the Tribunal found that the
dispute in the present case was vague, got up and motivated to
evade the liability, which, according to learned counsel, was a
perverse conclusion reached on the facts of this case.
7. Shri Jawaharlal, learned counsel appearing on behalf of
the respondent, has argued in reply that the only notice given to
rectify the defects by the Tribunal was an oral notice of 19th
January, 2017 and that too only to supply the notice of dispute
by the appellant. This was done within time and the Tribunal,
therefore, dismissed the application only on non-fulfillment of
9
the conditions laid down in Section 9. No plea was ever taken
before the Tribunal that the IDBI certificate was not furnished.
This plea was taken for the first time only in appeal, and since
the Tribunal did not think it fit to dismiss the application on a
technical ground, this ground does not avail the appellants. The
counsel then submitted that the expression “dispute” under
Section 5(6) covers only three things, namely, existence of the
amount of debt, quality of goods or services or breach of a
representation or warranty and since what was sought to be
brought as a defense was that the NDA was breached, it would
not come within the definition of “dispute” under Section 5(6).
He further went on to state that, at best, the breach of the NDA
is a claim for unliquidated damages which does not become
crystallized until legal proceedings are filed, and none have
been filed so far. Therefore, there is no real dispute on the
facts of the present case and the Tribunal was correct in its
finding that the dispute was a sham one.
8. Before going into the contentions of fact and law argued
by both counsel, it is a little important to trace the background
10
of this path-breaking legislation viz. the Insolvency and
Bankruptcy Code, 2016. The starting point is a Resolution of
the UN General Assembly, Resolution No.59/40, passed on 2nd
December, 2004, by which it was stated:
“Legislative Guide on Insolvency Law of the
United Nations Commission on International
Trade Law
The General Assembly,
Recognizing the importance to all countries of
strong, effective and efficient insolvency regimes as
a means of encouraging economic development
and investment,
Noting the growing realization that
reorganization regimes are critical to corporate and
economic recovery, the development of
entrepreneurial activity, the preservation of
employment and the availability of finance in the
capital market,
Noting also the importance of social policy
issues to the design of an insolvency regime,
Noting with satisfaction the completion and
adoption of the Legislative Guide on Insolvency Law
of the United Nations Commission on International
Trade Law by the Commission at its thirty-seventh
session, on 25 June 2004,
Believing that the Legislative Guide, which
includes the text of the Model Law on Cross-Border
Insolvency and Guide to Enactment recommended
by the General Assembly in its resolution 52/158 of
15 December 1997, contributes significantly to the
establishment of a harmonized legal framework for
11
insolvency and will be useful both to States that do
not have an effective and efficient insolvency
regime and to States that are undertaking a process
of review and modernization of their insolvency
regimes,
Recognizing the need for cooperation and
coordination between international organizations
active in the field of insolvency law reform to ensure
consistency and alignment of that work and to
facilitate the development of international standards,
Noting that the preparation of the Legislative
Guide was the subject of due deliberations and
extensive consultations with Governments and
international intergovernmental and nongovernmental
organizations active in the field of
insolvency law reform,
1. Expresses its appreciation to the United
Nations Commission on International Trade Law for
the completion and adoption of its Legislative Guide
on Insolvency Law;
2. Requests the Secretary-General to publish
the Legislative Guide and to make all efforts to
ensure that it becomes generally known and
available;
3. Recommends that all States give due
consideration to the Legislative Guide when
assessing the economic efficiency of their
insolvency regimes and when revising or adopting
legislation relevant to insolvency;
4. Recommends also that all States continue
to consider implementation of the Model Law on
Cross-Border Insolvency of the United Nations
Commission on International Trade Law.”
12
9. The purpose of the Legislative Guide for various nations
was stated as follows:
“The purpose of the Legislative Guide on Insolvency
Law is to assist the establishment of an efficient and
effective legal framework to address the financial
difficulty of debtors. It is intended to be used as a
reference by national authorities and legislative
bodies when preparing new laws and regulations or
reviewing the adequacy of existing laws and
regulations. The advice provided in the Guide aims
at achieving a balance between the need to address
the debtor’s financial difficulty as quickly and
efficiently as possible and the interests of the
various parties directly concerned with that financial
difficulty, principally creditors and other parties with
a stake in the debtor’s business, as well as with
public policy concerns. The Guide discusses issues
central to the design of an effective and efficient
insolvency law, which, despite numerous
differences in policy and legislative treatment, are
recognized in many legal systems. It focuses on
insolvency proceedings commenced under the
insolvency law and conducted in accordance with
that law, with an emphasis on reorganization,
against a debtor, whether a legal or natural person,
that is engaged in economic activity. Issues specific
to the insolvency of individuals not so engaged,
such as consumers, are not addressed.”
In stating some of the key objectives of effective and efficient
insolvency law, the Legislative Guide goes on to state:
13
“When a debtor is unable to pay its debts and other
liabilities as they become due, most legal systems
provide a legal mechanism to address the collective
satisfaction of the outstanding claims from assets
(whether tangible or intangible) of the debtor. A
range of interests needs to be accommodated by
that legal mechanism: those of the parties affected
by the proceedings including the debtor, the owners
and management of the debtor, the creditors who
may be secured to varying degrees (including tax
agencies and other government creditors),
employees, guarantors of debt and suppliers of
goods and services, as well as the legal,
commercial and social institutions and practices that
are relevant to the design of the insolvency law and
required for its operation. Generally, the mechanism
must strike a balance not only between the different
interests of these stakeholders, but also between
these interests and the relevant social, political and
other policy considerations that have an impact on
the economic and legal goals of insolvency
proceedings.
xxx xxx xxx
An insolvency law should be transparent and
predictable. This will enable potential lenders and
creditors to understand how insolvency proceedings
operate and to assess the risk associated with their
position as a creditor in the event of insolvency.
This will promote stability in commercial relations
and foster lending and investment at lower risk
premiums. Transparency and predictability will also
enable creditors to clarify priorities, prevent disputes
by providing a backdrop against which relative
rights and risks can be assessed and help define
the limits of any discretion. Unpredictable
application of the insolvency law has the potential to
undermine not only the confidence of all participants
in insolvency proceedings, but also their willingness
14
to make credit and other investment decisions prior
to insolvency. As far as possible, an insolvency law
should clearly indicate all provisions of other laws
that may affect the conduct of the insolvency
proceedings (e.g. labour law; commercial and
contract law; tax law; laws affecting foreign
exchange, netting and set-off and debt for equity
swaps; and even family and matrimonial law).
An insolvency law should ensure that adequate
information is available in respect of the debtor’s
situation, providing incentives to encourage the
debtor to reveal its positions and, where
appropriate, sanctions for failure to do so. The
availability of this information will enable those
responsible for administering and supervising
insolvency proceedings (courts or administrative
agencies, the insolvency representative) and
creditors to assess the financial situation of the
debtor and determine the most appropriate
solution.”
While referring to the commencement of insolvency
proceedings, the Legislative Guide states:
“The standard to be met for commencement of
insolvency proceedings is central to the design of
an insolvency law. As the basis upon which
insolvency proceedings can be commenced, this
standard is instrumental to identifying the debtors
that can be brought within the protective and
disciplinary mechanisms of the insolvency law and
determining who may make an application for
commencement, whether the debtor, creditors or
other parties.
As a general principle it is desirable that the
commencement standard be transparent and
15
certain, facilitating access to insolvency
proceedings conveniently, cost-effectively and
quickly to encourage financially distressed or
insolvent businesses to voluntarily commence
proceedings. It is also desirable that access be
flexible in terms of the types of insolvency
proceedings available (reorganization and
liquidation), and the ease with which the
proceedings most relevant to a particular debtor can
be accessed, and that conversion between the
different types of proceeding can be achieved.
Restrictive access can deter both debtors and
creditors from commencing proceedings, while the
effects of delay can be harmful to the value of
assets and the successful completion of insolvency
proceedings, in particular in cases of reorganization.
Ease of access needs to be balanced with proper
and adequate safeguards to prevent improper use
of proceedings. Examples of improper use may
include application by a debtor that is not in financial
difficulty in order to take advantage of the
protections provided by the insolvency law, such as
the automatic stay, or to avoid or delay payment to
creditors and application by creditors who are
competitors of the debtor, where the purpose of the
application is to take advantage of insolvency
proceedings to disrupt the debtor’s business and
thus gain a competitive edge.”
10. On the fixation of time limits and denial of an application
to commence proceedings, the Legislative Guide states:
“Where a court is required to make a decision as to
commencement, it is desirable that that decision be
made in a timely manner to ensure both certainty
and predictability of the decision-making and the
16
efficient conduct of the proceedings without delay.
This will be particularly important in the case of
reorganization to avoid further diminution of the
value of assets and to improve the chances of a
successful reorganization. Some insolvency laws
prescribe set time periods after the application
within which the decision to commence must be
made. These laws often distinguish between
applications by debtors and by creditors, with
applications by debtors tending to be determined
more quickly. Any additional period for creditor
applications is designed to allow prompt notice to be
given to the debtor and provide the debtor with an
opportunity to respond to the application.
Although the approach of fixing time limits may
serve the objectives of providing certainty and
transparency for both the debtor and creditors, the
achievement of those objectives may need to be
balanced against possible disadvantages. For
example, a fixed time period may be insufficiently
flexible to take account of the circumstances of the
particular case. More generally, such time periods
may be set without regard to the resources
available to the body responsible for supervising
insolvency proceedings or of the local priorities of
that body (especially where insolvency is only one
of the matters for which it has responsibility). It may
also prove difficult to ensure that the decisionmaking
body adheres to the established limit and to
provide appropriate consequences where there is
no compliance. The time period between application
and the decision to commence proceedings should
also reflect the type of proceeding applied for, the
application procedure and the consequences of
commencement in any particular regime. For
example, the extent to which notification of parties
in interest and information gathering must be
completed prior to commencement will vary
17
between regimes, requiring different periods of time.
For these reasons, it is desirable that an insolvency
law adopt a flexible approach that emphasizes the
advantages of quick decision-making and provides
guidance as to what is reasonable, but at the same
time also recognizes local constraints and priorities.
(d) Denial of an application to commence
proceedings
The preceding paragraphs refer to a number of
instances where it will be desirable, in those cases
where the court is required to make the
commencement decision, for the court to have the
power to deny the application for commencement,
either because of questions of improper use of the
insolvency law or for technical reasons relating to
satisfaction of the commencement standard. The
cases referred to include examples of both debtor
and creditor applications. Principal among the
grounds for denial of the application for technical
reasons might be those cases where the debtor is
found not to satisfy the commencement standard;
where the debt is subject to a legitimate dispute or
off-set in an amount equal to or greater than the
amount of the debt; where the proceedings will
serve no purpose because, for example, secured
debt exceeds the value of assets; and where the
debtor has insufficient assets to pay for the
insolvency administration and the law makes no
other provision for funding the administration of
such estates.
Examples of improper use might include those
cases where the debtor uses an application for
insolvency as a means of prevaricating and
unjustifiably depriving creditors of prompt payment
of debts or of obtaining relief from onerous
obligations, such as labour contracts. In the case of
a creditor application, it might include those cases
18
where a creditor uses insolvency as an
inappropriate substitute for debt enforcement
procedures (which may not be well developed); to
attempt to force a viable business out of the market
place; or to attempt to obtain preferential payments
by coercing the debtor (where such preferential
payments have been made and the debtor is
insolvent, investigation would be a key function of
insolvency proceedings).
As noted above, where there is evidence of
improper use of the insolvency proceedings by
either the debtor or creditors, the insolvency law
may provide, in addition to denial of the application,
that sanctions can be imposed on the party
improperly using the proceedings or that that party
should pay costs and possibly damages to the other
party for any harm caused. Remedies may also be
available under non-insolvency law. Where an
application is denied, any provisional measures of
relief ordered by the court after the time of the
application for commencement should terminate
(see chap. II, para. 53).”
(Emphasis supplied)
Ultimately, recommendation 19 of the Legislative Guide
reads as under:
“Commencement on creditor application (paras.57
and 67)
19. The law generally should specify that, where a
creditor makes the application for commencement:
(a) Notice of the application promptly is given to the
debtor;
(b) The debtor be given the opportunity to respond
to the application, by contesting the application,
19
consenting to the application or, where the
application seeks liquidation, requesting the
commencement of reorganization proceedings; and
(c) The court will promptly determine its jurisdiction
and whether the debtor is eligible and the
commencement standard has been met and, if so,
commence insolvency proceedings.1
”
11. The legislative history of legislation relating to
indebtedness goes back to the year 1964 when the 24th Law
Commission recommended amendments to the Provincial
Insolvency Act of 1920. This was followed by the Tiwari
Committee of 1981, which introduced the Sick Industrial
Companies Act, 1985. Following economic liberalization in the
1990s, two Narsimham Committee reports led to the Recovery
of Debts and Bankruptcy Act, 1993 and the SARFAESI Act,
2002. Meanwhile, the Goswami Committee Report, submitted
in 1993, condemned the liquidation procedure prescribed by the
Companies Act, 1956 as unworkable and being beset with
delays at all levels – delaying tactics employed by the
management, delays at the level of the Courts, delays in
1
A determination that the commencement standard has been met may involve consideration of
whether the debt is subject to a legitimate dispute or offset in an amount equal to or greater
than the amount of the debt. The existence of such a set-off may be a ground for dismissal of the
application (see above, paras. 61-63).
20
making auction sales etc. This then led to the Eradi Committee
Report of 1999, which proposed amendments to the
Companies Act and proposed the repeal of SICA. This
Committee echoed the findings of the Goswami Committee and
recommended an overhaul of the liquidation procedure under
the Companies Act.
12. It was for the first time, in 2001, that the L.N. Mitra
Committee of the RBI proposed a comprehensive Bankruptcy
Code. This was followed by the Irani Committee Report, also of
the RBI in 2005, which noted that the liquidation procedure in
India is costly, inordinately lengthy and results in almost
complete erosion of asset value. The Committee also noted
that the insolvency framework did not balance stakeholders’
interests adequately. It proposed a number of changes
including changes for increased protection of creditors’ rights,
maximization of asset value and better management of the
company in liquidation. In 2008, the Raghuram Rajan
Committee of the Planning Commission proposed improvement
to the credit infrastructure in the country, and finally a
21
Committee of Financial Sector Legislative Reforms in 2013
submitted a draft Indian Financial Code, which included a
“resolution corporation” for resolving distressed financial firms.
13. All this then led to the Bankruptcy Law Reforms
Committee, set up by the Department of Economic Affairs,
Ministry of Finance, under the Chairmanship of Shri T.K.
Viswanathan. This Committee submitted an interim report in
February 2015 and a final report in November of the same year.
It was, as a result of the deliberations of this Committee, that
the present Insolvency and Bankruptcy Code of 2016 was
finally born.
14. The interim report went into the existing law on
indebtedness in some detail and discussed the tests laid down
in Madhusudan Gordhandas v. Madhu Woollen Industries
Pvt. Ltd (1972) 2 SCR 201, by which a petition presented
under the Companies Act on the ground that the company is
“unable to pay its debts” can only be dismissed if the debt is
bona fide disputed, i.e. that the defense of the debtor is
genuine, substantial and is likely to succeed on a point of law.
22
The interim report also adverted to an amendment made in the
Companies Act, 2003, by which the threshold requirement of
Rs.500 was replaced by Rs.1 lakh.
15. The interim report found:
“Once the petitioning creditor has proved the
inability of the debtor company to pay debts, van
Zwieten states that courts in India have recognised
a wide discretion that enabled it to give time to the
debtor to make payment or even dismiss the
petition. This is in stark contrast with the position in
the UK (from where the law was transplanted)
where once the company’s inability to pay debts has
been proven, the petitioning creditor is ordinarily
held to be entitled to a winding up order (although it
should be noted that there is an alternative
corporate rescue procedure, ‘administration’, which
a debtor may be entitled to enter).
The effect of these abovementioned judicial
developments has been to add significant delays in
the liquidation process under CA 1956 and to add
uncertainty regarding the rights of the creditors in
the event of the company’s insolvency.
Consequently, this has made creditor recourse to
the liquidation procedure as a means of debt
enforcement rather difficult, and secondly, rendered
the liquidation procedure ineffective as a disciplinary
mechanism for creditors against insolvent debtors.”
The interim report then recommended:
“Recommendations:
• In order to re-instate the debt enforcement function
of the statutory demand test for winding up, if a
23
company fails to pay an undisputed debt of a
prescribed value as per Section 271(2) (a), the
creditor should be entitled to a winding up order
irrespective of whether it is insolvent (in commercial
or balance sheet terms) or not. Further, the NCLT
should have the discretion to refer the company for
rehabilitation under Chapter XIX before making a
winding up order on such ground, if the company
appears to be prima facie viable. Further, in order to
prevent abuse of the provision by creditors and
ensure that it is not used to force debtor companies
to settle disputed debts, the provision should specify
the factors that the NCLT may take into account to
determine whether the debt under consideration is
disputed or not. As laid down by the courts, a
petition may be dismissed if the debt in question is
bona fide disputed, i.e., where the following
conditions are satisfied: (i) the defence of the debtor
company is genuine, substantial and in good faith;
(ii) the defence is likely to succeed on a point of law;
and (iii) the debtor company adduces prima facie
proof of the facts on which the defence depends.
Further, as with initiation of rescue proceedings, the
NCLT should also have the power to impose
sanctions/costs/damages on a petitioning creditor
and disallow reapplications on the same grounds if
it finds that a petition has been filed to abuse the
process of law.
• The Government may also consider revising the
present value for triggering the statutory demand
test under Section 271 (2) (a) from ‘one lakh rupees’
to a higher amount or revise the provision to state
‘one lakh rupees or such amount as may be
prescribed’.
• ‘Balance sheet insolvency’ and ‘commercial
insolvency’ should be identified as separate
grounds indicating a company’s ‘inability to pay
24
debt’ in order to avoid conflicts/confusion with the
statutory demand test (as is the case of the IA 1986
where the statutory demand test, the commercial
insolvency test and the balance sheet insolvency
test are alternate grounds for determining a
company’s inability to pay debts under Sections
123(1) (a),123 (1) (e) and 123(2), respectively).”
16. By the final report dated November 2015, the
recommendation of the interim report was shelved. The
Committee made a distinction between financial contracts and
operational contracts. It stated:
“4.3.3 Information about the liabilities of a
solvent entity
Operational contracts typically involve an exchange
of goods and services for cash. For an enterprise,
the latter includes payables for purchase of rawmaterials,
other inputs or services, taxation and
statutory liabilities, and wages and benefits to
employees.
xxx xxx xxx
The Code specifies that if the Adjudicator is able to
locate the record of the liability and of default with
the registered IUs, a financial creditor needs no
other proof to establish that a default has taken
place.
xxx xxx xxx
The second set of liabilities are operational
liabilities, which are more difficult to centrally
capture given that the counterparties are a wide and
heterogeneous set. In the state of insolvency, the
record of all liabilities in the IUs become critical to
25
creditors in assessing the complexity of the
resolution required. Various private players,
including potential strategic acquirers or distressed
asset funds, would constantly monitor entities that
are facing stress, and prepare to make proposals to
the committee of creditors in the event that an
insolvency is triggered. Easy access to this
information is vital in ensuring that there is adequate
interest by various kinds of financial firms in coming
up to the committee of creditors with proposals. It is
not easy to set up mandates for the holders of
operational liabilities to file the records of their
liabilities, unlike the case of financial creditors.
However, their incentives to file liabilities are even
stronger when the entity approaches insolvency.
4.3.4 Information about operational creditors
Once the invoice or notice is served, the debtor
should be given a certain period of time in which to
respond either by disputing it in a court, or pay up
the amount of the invoice or notice. The debtor will
have the responsibility to file the information about
the court case, or the repayment record in response
to the invoice or notice within the specified amount
of time. If the debtor does not file either response
within the specified period, and the creditor files for
insolvency resolution, the debtor may be charged a
monetary penalty by the Adjudicator. However, if
the debtor disputes the claim in court, until the
outcome of this case is decided, the creditor may
not be able to trigger insolvency on the entity. This
process will act as a deterrent for frivolous claims
from creditors, as well as act as a barrier for some
types of creditors to initiate insolvency resolution.”
26
The Committee then went on to consider as to who can
trigger the insolvency process. In paragraph 5.2.1 the
Committee stated:
“Box 5.2 – Trigger for IRP
1. The IRP can be triggered by either the debtor or
the creditors by submitting documentation specified
in the Code to the adjudicating authority.
2. For the debtor to trigger the IRP, she must be
able to submit all the documentation that is defined
in the Code, and may be specified by the Regulator
above this.
3. The Code differentiates two categories of
creditors: financial creditors where the liability to the
debtor arises from a solely financial transaction, and
operational creditors where the liability to the debtor
arises in the form of future payments in exchange
for goods or services already delivered. In cases
where a creditor has both a solely financial
transaction as well as an operational transaction
with the entity, the creditor will be considered a
financial creditor to the extent of the financial debt
and an operational creditor to the extent of the
operational debt is more than half the full liability it
has with the debtor.
4. The Code will require different documentation for
a debtor, a financial creditor, and an operational
creditor to trigger the IRP. These are listed in Box
5.3 under what the Adjudicator will accept as
requirements to trigger the IRP.
5.2.1 Who can trigger the IRP?
Here, the Code differentiates between financial
creditors and operational creditors. Financial
27
creditors are those whose relationship with the
entity is a pure financial contract, such as a loan or
a debt security. Operational creditors are those
whose liability from the entity comes from a
transaction on operations. Thus, the wholesale
vendor of spare parts whose spark plugs are kept in
inventory by the car mechanic and who gets paid
only after the spark plugs are sold is an operational
creditor. Similarly, the lessor that the entity rents out
space from is an operational creditor to whom the
entity owes monthly rent on a three-year lease. The
Code also provides for cases where a creditor has
both a solely financial transaction as well as an
operational transaction with the entity. In such a
case, the creditor can be considered a financial
creditor to the extent of the financial debt and an
operational creditor to the extent of the operational
debt.
5.2.2 How can the IRP be triggered?
An application from a creditor must have a record of
the liability and evidence of the entity having
defaulted on payments. The Committee
recommends different documentation requirements
depending upon the type of creditor, either financial
or operational. A financial creditor must submit a
record of default by the entity as recorded in a
registered Information Utility (referred to as the IU)
as described in Section 4.3 (or on the basis of other
evidence). The default can be to any financial
creditor to the entity, and not restricted to the
creditor who triggers the IRP. The Code requires
that the financial creditor propose a registered
Insolvency Professional to manage the IRP.
Operational creditors must present an “undisputed
bill” which may be filed at a registered information
utility as requirement to trigger the IRP. The Code
does not require the operational creditor to propose
a registered Insolvency Professional to manage the
28
IRP. If a professional is not proposed by the
operational creditor, and the IRP is successfully
triggered, the Code requires the Adjudicator to
approach the Regulator for a registered Insolvency
Professional for the case.
When the Adjudicator receives the application, she
confirms the validity of the documents before the
case can be registered by confirming the
documentation in the information utility if applicable.
In case the debtor triggers the IRP, the list of
documentation provided by the debtor is checked
against the required list. The proposal for the RP is
forwarded to the Regulator for validation. If both the
documentation and the proposed RP checks out as
required within the time specified in regulations, the
Adjudicator registers the IRP.
In case the financial creditor triggers the IRP, the
Adjudicator verifies the default from the information
utility (if the default has been filed with an
information utility, it shall be incontrovertible
evidence of the existence of a default) or otherwise
confirms the existence of default through the
additional evidence adduced by the financial
creditor, and puts forward the proposal for the RP to
the Regulator for validation. In case the operational
creditor triggers the IRP, the Adjudicator verifies the
documentation. Simultaneously, the Adjudicator
requests the Regulator for an RP. If either step
cannot be verified, or the process verification
exceeds the specified amount of time, then the
Adjudicator rejects the application, with a reasoned
order for the rejection. The order rejecting the
application cannot be appealed against. Instead,
application has to be made afresh. Once the
documents are verified within a specified amount of
time, the Adjudicator will trigger the IRP and register
the IRP by issuing an order. The order will contain a
unique ID that will be issued for the case by which
29
all reports and records that are generated during the
IRP will be stored, and accessed.”
17. Annexed to this Committee Report is the Insolvency and
Bankruptcy Bill, 2015. Interestingly, Section 5(4) defined
“dispute” as:
“5. Definitions
In this Part, unless the context otherwise requires-
(4) “dispute” means a bona fide suit or arbitration
proceeding regarding (a) the existence or the amount of a
debt; (b) the quality of a good or service; or (c) the breach
of a representation or warranty;”
Sections 8 and 9 in the said Bill read as under:
“8. Insolvency resolution by operational creditor.
(1) An operational creditor shall, on the occurrence
of a default, deliver a demand notice or copy of an
invoice demanding payment of the amount involved
in the default to the corporate debtor in such form
as may be prescribed, through an information utility,
wherever applicable, or by registered post or courier
or by any electronic communication.
(2) The corporate debtor shall, within a period of ten
days of the receipt of the demand notice or copy of
the invoice mentioned in sub-section (1) bring to the
notice of the operational creditor –
(a) the existence of a dispute, if any,
and record of the pendency of the suit or
30
arbitration proceedings filed at least
sixty days prior to the receipt of such
invoice or notice in relation to such
dispute through an information utility or
by registered post or courier or by any
electronic communication;
(b) the repayment of unpaid operational
debt- (i) by sending an attested copy of
electronic transfer of the unpaid amount
from the bank account of the corporate
debtor; or (ii) by sending an attested
copy of proof that the operational
creditor having encashed a cheque
issued by the corporate debtor.
Explanation. – For the purpose of this section a
“demand notice” means a notice served by an
operational creditor to the corporate debtor
demanding repayment of the debt in respect of
which the default has occurred.
9. Application for initiation of corporate
insolvency resolution process by operational
creditor.
(1) After the expiry of the period of ten days from
the date of delivery of the invoice or notice
demanding payment under sub-section (1) of
section 8, if the operational creditor does not
receive payment from the corporate debtor or notice
of the dispute under sub-section (2) of section 8, the
operational creditor may file an application with the
Adjudicating Authority in the prescribed form for
initiating a corporate insolvency resolution process.
(2) The application under sub-section (1) shall be
filed in such form and manner and accompanied
with such fee as may be prescribed.
31
(3) The operational creditor shall, along with the
application furnish-
(a) the invoice demanding payment or
notice delivered by the operational
creditor to the corporate debtor;
(b) affidavit to the effect that there is no
notice given by the corporate debtor
relating to a dispute of the unpaid
operational debt;
(c) a confirmation from the financial
institutions maintaining accounts of the
operational creditor that there is no
payment of an unpaid operational debt
by the corporate debtor; and
(d) such other information or as may be
specified.
(4) The Adjudicating Authority shall, within two days
of the receipt of the application under sub-section
(2), admit the application and communicate such
decision to the operational creditor and the
corporate debtor if, -
(a) the application is complete;
(b) there is no repayment of the unpaid
operational debt;
(c) the invoice or notice for payment to
the corporate debtor has been delivered
by the operational creditor; and
(d) no notice of dispute has been
received by the operational creditor or
there is no record of dispute in the
information utility.
32
(5) The Adjudicating Authority shall reject the
application and communicate such decision to the
operational creditor and the corporate debtor if –
(a) the application made under this
section is incomplete;
(b) there has been repayment of the
unpaid operational debt;
(c) the creditor has not delivered the
invoice or notice for payment to the
corporate debtor; and
(d) notice of dispute has been received
by the operational creditor and there is
no record of dispute in the information
utility.
(6) Without prejudice to the conditions mentioned in
sub-section (3), an operational creditor initiating a
corporate insolvency resolution process under this
section, may also propose a resolution professional
to act as an interim resolution professional.
(7) The corporate insolvency resolution process
shall commence from the date of admission of the
application under sub-section (4) of this section.”
18. Meanwhile, the Insolvency and Bankruptcy Bill that was
annexed to the Bankruptcy Law Reforms Committee Report
underwent a further change before it was submitted to a Joint
Committee of the Lok Sabha. In this Bill, the definition of
“dispute” now read as follows:
33
“5. Definitions.
In this Part unless the context otherwise requires,-
(6) “dispute” includes a suit or arbitration
proceedings relating to—
(a) the existence or the amount of debt;
(b) the quality of goods or service; or
(c) the breach of a representation or warranty;”
Sections 8 and 9 read as follows:
“8. Insolvency resolution by operational creditor.
(1) An operational creditor may, on the occurrence
of a default, deliver a demand notice of unpaid
operational debt or copy of an invoice demanding
payment of the amount involved in the default to the
corporate debtor in such form as may be
prescribed, through an information utility, wherever
applicable, or by registered post or courier or by
such electronic mode of communication, as may be
specified.
(2) The corporate debtor shall, within a period of ten
days of the receipt of the demand notice or copy of
the invoice mentioned in sub-section (1), bring to
the notice of the operational creditor—
(a) the existence of a dispute, if any,
and record of the pendency of the suit or
arbitration proceedings filed prior to the
receipt of such notice or invoice in
relation to such dispute through an
information utility or by registered post
or courier or by such electronic mode of
communication as may be specified;
(b) the repayment of unpaid operational
debt—
34
(i) by sending an attested
copy of the record of
electronic transfer of the
unpaid amount from the
bank account of the
corporate debtor; or
(ii) by sending an attested
copy of record that the
operational creditor has
encashed a cheque issued
by the corporate debtor.
Explanation.— For the purposes of this section, a
“demand notice” means a notice served by an
operational creditor to the corporate debtor
demanding repayment of the operational debt in
respect of which the default has occurred.
9. Application for initiation of corporate
insolvency resolution process by operational
creditor.
(1) After the expiry of the period of ten days from
the date of delivery of the notice or invoice
demanding payment under sub-section (1) of
section 8, if the operational creditor does not
receive payment from the corporate debtor or notice
of the dispute under sub-section (2) of section 8, the
operational creditor may file an application before
the Adjudicating Authority for initiating a corporate
insolvency resolution process.
(2) The application under sub-section (1) shall be
filed in such form and manner and accompanied
with such fee as may be prescribed.
(3) The operational creditor shall, along with the
application furnish—
(a) a copy of the invoice demanding
payment or demand notice delivered by
35
the operational creditor to the corporate
debtor;
(b) an affidavit to the effect that there is
no notice given by the corporate debtor
relating to a dispute of the unpaid
operational debt;
(c) a copy of the certificate from the
financial institutions maintaining
accounts of the operational creditor
confirming that there is no payment of
an unpaid operational debt by the
corporate debtor; and
(d) such other information or as may be
specified.
(4) An operational creditor initiating a corporate
insolvency resolution process under this section,
may propose a resolution professional to act as an
interim resolution professional.
(5) The Adjudicating Authority shall, within fourteen
days of the receipt of the application under subsection
(2), by an order—
(i) admit the application and
communicate such decision to the
operational creditor and the corporate
debtor if,—
(a) the application made
under sub-section (2) is
complete;
(b) there is no repayment of
the unpaid operational debt;
(c) the invoice or notice for
payment to the corporate
36
debtor has been delivered
by the operational creditor;
(d) no notice of dispute has
been received by the
operational creditor or there
is no record of dispute in the
information utility; and
(e) there is no disciplinary
proceeding pending against
any resolution professional
proposed under sub-section
(4), if any.
(ii) reject the application and
communicate such decision to the
operational creditor and the corporate
debtor, if—
(a) the application made
under sub-section (2) is
incomplete;
(b) there has been
repayment of the unpaid
operational debt;
(c) the creditor has not
delivered the invoice or
notice for payment to the
corporate debtor;
(d) notice of dispute has
been received by the
operational creditor or there
is a record of dispute in the
information utility; or
(e) any disciplinary
proceeding is pending
37
against any proposed
resolution professional:
Provided that Adjudicating Authority,
prior to rejecting an application under
sub-clause (a) of clause (ii) of this subsection,
shall give a notice to the
applicant to rectify the defect in his
application within three days of the date
of receipt of such notice from the
Adjudicating Authority.
(6) The corporate insolvency resolution process
shall commence from the date of admission of the
application under sub-section (5).”
19. The notes on clauses annexed to the Bill are extremely
important and read as follows:
“Notes on Clauses
Clause 6 provides that where a corporate debtor
has defaulted in paying a debt that has become due
and payable but not repaid, the corporate
insolvency resolution process under Part II may be
initiated in respect of such corporate debtor by a
financial creditor, an operational creditor or the
corporate debtor itself.
Early recognition of financial distress is very
important for timely resolution of insolvency. A
default based test for entry into the insolvency
resolution process permits early intervention such
that insolvency resolution proceedings can be
initiated at an early stage when the corporate debtor
shows early signs of financial distress rather than at
the point where it would be difficult to revive it
38
effectively. It also provides a simple test to initiate
resolution process.
This clause permits any financial creditor to initiate
the corporate insolvency resolution process where
the corporate debtor has defaulted in paying a debt
that has become due and payable but not repaid.
Financial creditors are those creditors to whom a
financial debt (i.e., a debt where the creditor is
compensated for the time value of the money lent)
is owed.
Further, the Code also permits the corporate debtor
itself to initiate the insolvency resolution process
once it has defaulted on a debt. Additionally,
operational creditors (i.e., creditors to whom a sum
of money is owed for the provision of goods or
services or the Central/State Government or local
authorities in respect of payments due to them) are
also permitted to initiate the insolvency resolution
process. This will bring the law in line with
international practices, which permit unsecured
creditors (including employees, suppliers etc. who
fall under the definition of operational creditors) to
file for the initiation of insolvency resolution
proceedings.
Clause 7 lays down the procedure for the initiation
of the corporate insolvency resolution process by a
financial creditor or two or more financial creditors
jointly. The financial creditor can file an application
before the National Company Law Tribunal along
with proof of default and the name of a resolution
professional proposed to act as the interim
resolution professional in respect of the corporate
debtor. The requirement to provide proof of default
ensures that financial creditors do not file frivolous
applications or applications which prematurely put
the corporate debtor into insolvency resolution
proceedings for extraneous considerations. The
39
adjudicating authority/ Tribunal can, within fourteen
days from the date of receipt of the application,
ascertain the existence of a default from the records
of a regulated information utility. A default may also
be proved in such manner as may be specified by
the Insolvency and Bankruptcy Board of India.
Once the adjudicating authority/Tribunal is satisfied
as to the existence of the default and has ensured
that the application is complete and no disciplinary
proceedings are pending against the proposed
resolution professional, it shall admit the application.
The adjudicating authority/Tribunal is not required to
look into any other criteria for admission of the
application. It is important that parties are not
allowed to abuse the legal process by using
delaying tactics at the admissions stage.
Clause 8 lays down the procedure for the initiation
of the corporate insolvency resolution process by an
operational creditor. This procedure differs from the
procedure applicable to financial creditors as
operational debts (such as trade debts, salary or
wage claims) tend to be small amounts (in
comparison to financial debts) or are recurring in
nature and may not be accurately reflected on the
records of information utilities at all times. The
possibility of disputed debts in relation to
operational creditors is also higher in comparison to
financial creditors such as banks and financial
institutions. Accordingly, the process for initiation of
the insolvency resolution process differs for an
operational creditor.
Once a default has occurred, the operational
creditor has to deliver a demand notice or a copy of
an invoice demanding payment of the debt in
default to the corporate debtor. The corporate
debtor has a period of ten days from the receipt of
the demand notice or invoice to inform the
40
operational creditor of the existence of a dispute
regarding the debt claim or of the repayment of the
debt. This ensures that operational creditors, whose
debt claims are usually smaller, are not able to put
the corporate debtor into the insolvency resolution
process prematurely or initiate the process for
extraneous considerations. It may also facilitate
informal negotiations between such creditors and
the corporate debtor, which may result in a
restructuring of the debt outside the formal
proceedings.
Clause 9 On the expiry of the period of ten days
from the date of receipt of the invoice or demand
notice under Clause 8, if the operational creditor
does not receive either the payment of the debt or a
notice of existence of dispute in relation to the debt
claim from the corporate debtor, he can file an
application with the adjudicating authority for
initiating the insolvency resolution process in
respect of such debtor. He also has to furnish proof
of default and proof of non-payment of the debt
along with an affidavit verifying that there has been
no notice regarding the existence of a dispute in
relation to the debt claim. Within fourteen days from
the receipt of the application, if the adjudicating
authority/Tribunal is satisfied as to (a) the existence
of a default, and (b) the other criteria laid down in
clause 9(5) being met, it shall admit the application.
The adjudicating authority/Tribunal is not required to
look into any other criteria for admission of the
application. It is important that parties are not
allowed to abuse the legal process by using
delaying tactics at the admissions stage.”
(Emphasis supplied)
41
20. The Joint Committee in April, 2016 made certain small
changes in the said Bill, by which the Committee stated:
“17. Mode of delivery of demand notice of
unpaid operational debt – Clause 8
The Committee find that clause 8(1) of the Code
provides that an operational creditor may, on the
occurrence of a default, deliver a demand notice of
unpaid operational debt or copy of an invoice
demanding payment of the amount involved in the
default to the corporate debtor in such form as may
be prescribed, through an information utility,
wherever applicable, or by registered post or
courier or by such electronic mode of
communication, as may be specified.
The Committee are of the view that the details of
the mode of delivery of demand notice can be
provided in the rules. The Committee, therefore,
decide to substitute words “in such form as may be
prescribed, through an information utility, wherever
applicable, or by registered post or courier or by
such electronic mode of communication, as may be
specified” as appearing in clause 8(1) with the
words “in such form and manner, as may be
prescribed”. Besides as a consequential
amendment words “through an information utility or
by registered post or courier or by such electronic
mode of communication as may be specified” as
appearing in clause 8(2) may also be omitted.”
The Committee also revised the time limits set out in various
sections of the Code from 2, 3 and 5 days to a longer uniform
period of 7 days.
42
21. The stage is now set for setting out the relevant
provisions of the Code insofar as operational creditors and their
corporate debtors are concerned.
“3. Definitions.
In this Code, unless the context otherwise
requires,—
xxx xxx xxx
(12) “default” means non-payment of debt when
whole or any part or instalment of the amount of
debt has become due and payable and is not repaid
by the debtor or the corporate debtor, as the case
may be;
5. Definitions.
In this Part, unless the context otherwise requires,—
(6) “dispute” includes a suit or arbitration
proceedings relating to—
(a) the existence of the amount of debt;
(b) the quality of goods or service; or
(c) the breach of a representation or warranty;
xxx xxx xxx
(20) “operational creditor” means a person to whom
an operational debt is owed and includes any
person to whom such debt has been legally
assigned or transferred;
(21) “operational debt” means a claim in respect of
the provision of goods or services including
employment or a debt in respect of the repayment
of dues arising under any law for the time being in
43
force and payable to the Central Government, any
State Government or any local authority;
8. Insolvency resolution by operational creditor.
(1) An operational creditor may, on the occurrence
of a default, deliver a demand notice of unpaid
operational debt or copy of an invoice demanding
payment of the amount involved in the default to the
corporate debtor in such form and manner as may
be prescribed.
(2) The corporate debtor shall, within a period of ten
days of the receipt of the demand notice or copy of
the invoice mentioned in sub-section (1) bring to the
notice of the operational creditor—
(a) existence of a dispute, if any, and
record of the pendency of the suit or
arbitration proceedings filed before the
receipt of such notice or invoice in
relation to such dispute;
(b) the repayment of unpaid operational
debt—
(i) by sending an attested
copy of the record of
electronic transfer of the
unpaid amount from the
bank account of the
corporate debtor; or
(ii) by sending an attested
copy of record that the
operational creditor has
encashed a cheque issued
by the corporate debtor.
Explanation.—For the purposes of this section, a
“demand notice” means a notice served by an
operational creditor to the corporate debtor
44
demanding repayment of the operational debt in
respect of which the default has occurred.
9. Application for initiation of corporate
insolvency resolution process by operational
creditor.
(1) After the expiry of the period of ten days from
the date of delivery of the notice or invoice
demanding payment under sub-section (1) of
section 8, if the operational creditor does not
receive payment from the corporate debtor or notice
of the dispute under sub-section (2) of section 8, the
operational creditor may file an application before
the Adjudicating Authority for initiating a corporate
insolvency resolution process.
(2) The application under sub-section (1) shall be
filed in such form and manner and accompanied
with such fee as may be prescribed.
(3) The operational creditor shall, along with the
application furnish—
(a) a copy of the invoice demanding
payment or demand notice delivered by
the operational creditor to the corporate
debtor;
(b) an affidavit to the effect that there is
no notice given by the corporate debtor
relating to a dispute of the unpaid
operational debt;
(c) a copy of the certificate from the
financial institutions maintaining
accounts of the operational creditor
confirming that there is no payment of
an unpaid operational debt by the
corporate debtor; and
45
(d) such other information as may be
specified.
(4) An operational creditor initiating a corporate
insolvency resolution process under this section,
may propose a resolution professional to act as an
interim resolution professional.
(5) The Adjudicating Authority shall, within fourteen
days of the receipt of the application under subsection
(2), by an order—
(i) admit the application and
communicate such decision to the
operational creditor and the corporate
debtor if,—
(a) the application made
under sub-section (2) is
complete;
(b) there is no repayment of
the unpaid operational debt;
(c) the invoice or notice for
payment to the corporate
debtor has been delivered
by the operational creditor;
(d) no notice of dispute has
been received by the
operational creditor or there
is no record of dispute in the
information utility; and
(e) there is no disciplinary
proceeding pending against
any resolution professional
proposed under sub-section
(4), if any.
46
(ii) reject the application and
communicate such decision to the
operational creditor and the corporate
debtor, if—
(a) the application made
under sub-section (2) is
incomplete;
(b) there has been
repayment of the unpaid
operational debt;
(c) the creditor has not
delivered the invoice or
notice for payment to the
corporate debtor;
(d) notice of dispute has
been received by the
operational creditor or there
is a record of dispute in the
information utility; or
(e) any disciplinary
proceeding is pending
against any proposed
resolution professional:
Provided that Adjudicating Authority,
shall before rejecting an application
under sub-clause (a) of clause (ii) give a
notice to the applicant to rectify the
defect in his application within seven
days of the date of receipt of such notice
from the Adjudicating Authority.
(6) The corporate insolvency resolution process
shall commence from the date of admission of the
application under sub-section (5) of this section.”
47
22. Together with Section 8(1), the Insolvency and
Bankruptcy (Application to Adjudicating Authority) Rules, 2016,
speak of demand notices by the operational creditor and
applications by the operational creditor in the following terms:
“5. Demand notice by operational creditor.
(1) An operational creditor shall deliver to the
corporate debtor, the following documents, namely.-
(a) a demand notice in Form 3; or
(b) a copy of an invoice attached with a notice in
Form 4.
(2) The demand notice or the copy of the invoice
demanding payment referred to in sub-section (2) of
section 8 of the Code, may be delivered to the
corporate debtor,
(a) at the registered office by hand,
registered post or speed post with
acknowledgement due; or
(b) by electronic mail service to a whole
time director or designated partner or
key managerial personnel, if any, of the
corporate debtor.
(3) A copy of demand notice or invoice demanding
payment served under this rule by an operational
creditor shall also be filed with an information utility,
if any.
6. Application by operational creditor.
(1) An operational creditor, shall make an
application for initiating the corporate insolvency
resolution process against a corporate debtor under
section 9 of the Code in Form 5, accompanied with
48
documents and records required therein and as
specified in the Insolvency and Bankruptcy Board of
India (Insolvency Resolution Process for Corporate
Persons) Regulations, 2016.
(2) The applicant under sub-rule (1) shall dispatch
forthwith, a copy of the application filed with the
Adjudicating Authority, by registered post or speed
post to the registered office of the corporate debtor.
FORM 3
(See clause (a) of sub-rule (1) of rule 5)
FORM OF DEMAND NOTICE / INVOICE
DEMANDING PAYMENT UNDER THE
INSOLVENCY AND BANKRUPTCY CODE, 2016
(Under rule 5 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016)
[Date]
To,
[Name and address of the registered office of the
corporate debtor]
From,
[Name and address of the registered office of the
operational creditor]
Subject: Demand notice/invoice demanding
payment in respect of unpaid operational debt
due from [corporate debtor] under the Code.
Madam/Sir,
1. This letter is a demand notice/invoice demanding
payment of an unpaid operational debt due from
[name of corporate debtor].
49
2. Please find particulars of the unpaid operational
debt below:
PARTICULARS OF
OPERATIONAL DEBT
1. TOTAL AMOUNT OF
DEBT, DETAILS OF
TRANSACTIONS ON
ACCOUNT OF WHICH
DEBT FELL DUE, AND
THE DATE FROM WHICH
SUCH DEBT FELL DUE
2. AMOUNT CLAIMED TO
BE IN DEFAULT AND THE
DATE ON WHICH THE
DEFAULT OCCURRED
(ATTACH THE
WORKINGS FOR
COMPUTATION OF
DEFAULT IN TABULAR
FORM)
3. PARTICULARS OF
SECURITY HELD, IF ANY,
THE DATE OF ITS
CREATION, ITS
ESTIMATED VALUE AS
PER THE CREDITOR.
ATTACH A COPY OF A
CERTIFICATE OF
REGISTRATION OF
CHARGE ISSUED BY THE
REGISTRAR OF
COMPANIES (IF THE
CORPORATE DEBTOR IS
A COMPANY)
4. DETAILS OF RETENTION
OF TITLE
ARRANGEMENTS (IF
ANY) IN RESPECT OF
50
3. If you dispute the existence or amount of unpaid
operational debt (in default) please provide the
undersigned, within ten days of the receipt of this
letter, of the pendency of the suit or arbitration
proceedings in relation to such dispute filed before
the receipt of this letter/notice.
4. If you believe that the debt has been repaid
before the receipt of this letter, please demonstrate
such repayment by sending to us, within ten days of
receipt of this letter, the following:
(a) an attested copy of the record of electronic
transfer of the unpaid amount from the bank
account of the corporate debtor; or
(b) an attested copy of any record that [name of the
operational creditor] has received the payment.
5. The undersigned, hereby, attaches a certificate
from an information utility confirming that no record
GOODS TO WHICH THE
OPERATIONAL DEBT
REFERS
5. RECORD OF DEFAULT
WITH THE INFORMATION
UTILITY (IF ANY)
6. PROVISION OF LAW,
CONTRACT OR OTHER
DOCUMENT UNDER
WHICH DEBT HAS
BECOME DUE
7. LIST OF DOCUMENTS
ATTACHED TO THIS
APPLICATION IN ORDER
TO PROVE THE
EXISTENCE OF
OPERATIONAL DEBT
AND THE AMOUNT IN
DEFAULT
51
of a dispute raised in relation to the relevant
operational debt has been filed by any person at
any information utility, (if applicable)
6. The undersigned request you to unconditionally
repay the unpaid operational debt (in default) in full
within ten days from the receipt of this letter failing
which we shall initiate a corporate insolvency
resolution process in respect of [c].
Yours sincerely,
Signature of person authorised to act on
behalf of the operational creditor
Name in block letters
Position with or in relation to the operational
creditor
Address of person signing
Instructions
1. Please serve a copy of this form on the corporate
debtor, ten days in advance of filing an application
under section 9 of the Code.
2. Please append a copy of such served notice to
the application made by the operational creditor to
the Adjudicating Authority.
Form 4
(See clause (b) of sub-rule (1) of rule 5)
FORM OF NOTICE WITH WHICH INVOICE
DEMANDING PAYMENT IS TO BE ATTACHED
(Under Rule 5 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016)
[Date]
52
To,
[Name and address of registered office of the
corporate debtor]
From,
[Name and address of the operational creditor]
Subject: Notice attached to invoice demanding
payment
Madam/Sir,
[Name of operational creditor], hereby provides
notice for repayment of the unpaid amount of INR
[insert amount] that is in default as reflected in the
invoice attached to this notice.
In the event you do not repay the debt due to us
within ten days of receipt of this notice, we may file
an application before the Adjudicating Authority for
initiating a corporate insolvency resolution process
under section 9 of the Code.
Yours sincerely,
Signature of person authorised to act on
behalf of the operational creditor
Name in block letters
Position with or in relation to the operational
creditor
Address of person signing
Form 5
(See sub-rule (1) of rule 6)
APPLICATION BY OPERATIONAL CREDITOR
TO INITIATE CORPORATE INSOLVENCY
RESOLUTION PROCESS UNDER THE CODE.
53
(Under rule 6 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016)
[Date]
To,
The National Company Law Tribunal
[Address]
From,
[Name and address for correspondence of the
operational creditor]
In the matter of [name of the corporate debtor]
Subject: Application to initiate corporate
insolvency resolution process in respect of
[name of the corporate debtor] under the
Insolvency and Bankruptcy Code, 2016.
Madam/Sir,
[Name of the operational creditor], hereby submits
this application to initiate a corporate insolvency
resolution process in the case of [name of corporate
debtor]. The details for the purpose of this
application are set out below:
Part – I
PARTICULARS OF APPLICANT
1. NAME OF OPERATIONAL
CREDITOR
2. IDENTIFICATION NUMBER OF
OPERATIONAL CREDITOR
(IF ANY)
3. ADDRESS FOR
CORRESPONDENCE OF THE
OPERATIONAL CREDITOR
54
Part - II
PARTICULARS OF
CORPORATE DEBTOR
1. NAME OF THE CORPORATE
DEBTOR
2. IDENTIFICATION NUMBER OF
CORPORATE DEBTOR
3. DATE OF INCORPORATION OF
CORPORATE DEBTOR
4. NOMINAL SHARE CAPITAL AND
THE PAID-UP SHARE CAPITAL
OF THE CORPORATE DEBTOR
AND/OR DETAILS OF
GUARANTEE CLAUSE AS PER
MEMORANDUM OF
ASSOCIATION (AS
APPLICABLE)
5. ADDRESS OF THE
REGISTERED OFFICE OF THE
CORPORATE DEBTOR
6. NAME, ADDRESS AND
AUTHORITY OF PERSON
SUBMITTING APPLICATION ON
BEHALF OF OPERATIONAL
CREDITOR (ENCLOSE
AUTHORISATION)
7. NAME AND ADDRESS OF
PERSON RESIDENT IN INDIA
AUTHORISED TO ACCEPT THE
SERVICE OF PROCESS ON ITS
BEHALF (ENCLOSE
AUTHORISATION)
Part-III
PARTICULARS OF THE
PROPOSED INTERIM
RESOLUTION
PROFESSIONAL [IF
PROPOSED]
55
1. NAME, ADDRESS, EMAIL
ADDRESS AND THE
REGISTRATION NUMBER OF
THE PROPOSED INSOLVENCY
PROFESSIONAL
Part-IV
PARTICULARS OF
OPERATIONAL DEBT
1. TOTAL AMOUNT OF DEBT,
DETAILS OF TRANSACTIONS
ON ACCOUNT OF WHICH
DEBT FELL DUE,
AND THE DATE FROM WHICH
SUCH DEBT FELL DUE
2. AMOUNT CLAIMED TO BE IN
DEFAULT AND THE DATE ON
WHICH THE DEFAULT
OCCURRED (ATTACH THE
WORKINGS FOR
COMPUTATION OF AMOUNT
AND DATES OF DEFAULT IN
TABULAR FORM)
Part-V
PARTICULARS OF OPERATIONAL DEBT
[DOCUMENTS, RECORDS AND EVIDENCE
OF DEFAULT]
1. PARTICULARS OF SECURITY HELD, IF
ANY, THE DATE OF ITS CREATION, ITS
ESTIMATED VALUE AS PER THE
CREDITOR.
ATTACH A COPY OF A CERTIFICATE OF
REGISTRATION OF CHARGE ISSUED BY
THE REGISTRAR OF COMPANIES (IF THE
CORPORATE DEBTOR IS A COMPANY)
2. DETAILS OF RESERVATION / RETENTION
OF TITLE ARRANGEMENTS (IF ANY) IN
RESPECT OF GOODS TO WHICH THE
56
OPERATIONAL DEBT REFERS
3. PARTICULARS OF AN ORDER OF A
COURT, TRIBUNAL OR ARBITRAL PANEL
ADJUDICATING ON THE DEFAULT, IF ANY
(ATTACH A COPY OF THE ORDER)
4. RECORD OF DEFAULT WITH THE
INFORMATION UTILITY, IF ANY
(ATTACH A COPY OF SUCH RECORD)
5. DETAILS OF SUCCESSION CERTIFICATE,
OR PROBATE OF A WILL, OR LETTER OF
ADMINISTRATION, OR COURT DECREE
(AS MAY BE APPLICABLE), UNDER THE
INDIAN SUCCESSION ACT, 1925 (10 OF
1925)
(ATTACH A COPY)
6. PROVISION OF LAW, CONTRACT OR
OTHER DOCUMENT UNDER WHICH
OPERATIONAL DEBT HAS BECOME DUE
7. A STATEMENT OF BANK ACCOUNT
WHERE DEPOSITS ARE MADE OR
CREDITS RECEIVED NORMALLY BY THE
OPERATIONAL CREDITOR IN RESPECT
OF THE DEBT OF THE CORPORATE
DEBTOR (ATTACH A COPY)
8. LIST OF OTHER DOCUMENTS ATTACHED
TO THIS APPLICATION IN ORDER TO
PROVE THE EXISTENCE OF
OPERATIONAL DEBT AND THE AMOUNT
IN DEFAULT
I, [Name of the operational creditor / person
authorised to act on behalf of the operational
creditor] hereby certify that, to the best of my
knowledge, [name of proposed insolvency
professional], is fully qualified and permitted to act
as an insolvency professional in accordance with
the Code and the rules and regulations made
thereunder. [WHERE APPLICABLE]
57
[Name of the operational creditor] has paid the
requisite fee for this application through [state
means of payment] on [date].
Yours sincerely,
Signature of person authorised to act on behalf of
the operational creditor
Name in block letters
Position with or in relation to the operational
creditor
Address of person signing
Instructions -
Please attach the following to this application:
Annex I Copy of the invoice / demand notice as
in Form 3 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016
served on the corporate debtor.
Annex II Copies of all documents referred to in
this application.
Annex III Copy of the relevant accounts from the
banks/financial institutions maintaining accounts of
the operational creditor confirming that there is no
payment of the relevant unpaid operational debt by
the operational debtor, if available.
Annex IV Affidavit in support of the application in
accordance with the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016.
Annex V Written communication by the proposed
interim resolution professional as set out in Form 2
of the Insolvency and Bankruptcy (Application to
58
Adjudicating Authority) Rules, 2016. [WHERE
APPLICABLE]
Annex VI Proof that the specified application fee
has been paid.
Note: Where workmen/employees are operational
creditors, the application may be made either in an
individual capacity or in a joint capacity by one of
them who is duly authorised for the purpose.
Regulation 7 of the Insolvency and Bankruptcy Board of India
(Insolvency Resolution Process for Corporate Persons)
Regulations, 2016 is also relevant and reads as under:
“7. Claims by operational creditors.-
(1) A person claiming to be an operational creditor,
other than workman or employee of the corporate
debtor, shall submit proof of claim to the interim
resolution professional in person, by post or by
electronic means in Form B of the Schedule:
Provided that such person may submit
supplementary documents or clarifications in
support of the claim before the constitution of the
committee.
(2) The existence of debt due to the operational
creditor under this Regulation may be proved on
the basis of-
(a) the records available with an
information utility, if any; or
(b) other relevant documents, including
–
59
(i) a contract for the supply
of goods and services with
corporate debtor;
(ii) an invoice demanding
payment for the goods and
services supplied to the
corporate debtor;
(iii) an order of a court or
tribunal that has adjudicated
upon the non-payment of a
debt, if any; or
(iv) financial accounts.
FORM B
PROOF OF CLAIM BY OPERATIONAL
CREDITORS EXCEPT WORKMEN AND
EMPLOYEES
[Under Regulation 7 of the Insolvency and
Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulations, 2016]
[Date]
To
The Interim Resolution Professional / Resolution
Professional
[Name of the Insolvency Resolution Professional /
Resolution Professional]
[Address as set out in public announcement]
From
[Name and address of the operational creditor]
Subject: Submission of proof of claim.
Madam/Sir,
60
[Name of the operational creditor], hereby submits
this proof of claim in respect of the corporate
insolvency resolution process in the case of [name
of corporate debtor]. The details for the same are
set out below:
PARTICULARS
1. NAME OF OPERATIONAL
CREDITOR
2. IDENTIFICATION NUMBER
OF OPERATIONAL
CREDITOR
(IF AN INCORPORATED
BODY PROVIDE
IDENTIFICATION NUMBER
AND PROOF OF
INCORPORATION. IF A
PARTNERSHIP OR
INDIVIDUAL PROVIDE
IDENTIFICATION RECORDS*
OF ALL THE PARTNERS OR
THE INDIVIDUAL)
3. ADDRESS AND EMAIL
ADDRESS OF OPERATIONAL
CREDITOR FOR
CORRESPONDENCE
4. TOTAL AMOUNT OF CLAIM
(INCLUDING ANY INTEREST
AS AT THE INSOLVENCY
COMMENCEMENT DATE)
5. DETAILS OF DOCUMENTS
BY REFERENCE TO WHICH
THE DEBT CAN BE
SUBSTANTIATED.
6. DETAILS OF ANY DISPUTE
AS WELL AS THE RECORD
OF PENDENCY OR ORDER
61
OF SUIT OR ARBITRATION
PROCEEDINGS
7. DETAILS OF HOW AND
WHEN DEBT INCURRED
8. DETAILS OF ANY MUTUAL
CREDIT, MUTUAL DEBTS, OR
OTHER MUTUAL DEALINGS
BETWEEN THE CORPORATE
DEBTOR AND THE
CREDITOR WHICH MAY BE
SET-OFF AGAINST THE
CLAIM
9. DETAILS OF ANY
RETENTION OF TITLE
ARRANGEMENTS IN
RESPECT OF GOODS OR
PROPERTIES TO WHICH THE
CLAIM REFERS
10. DETAILS OF THE BANK
ACCOUNT TO WHICH THE
AMOUNT OF THE CLAIM OR
ANY PART THEREOF CAN BE
TRANSFERRED PURSUANT
TO A RESOLUTION PLAN
11. LIST OF DOCUMENTS
ATTACHED TO THIS PROOF
OF CLAIM IN ORDER TO
PROVE THE EXISTENCE AND
NONPAYMENT OF CLAIM
DUE TO THE OPERATIONAL
CREDITOR
Signature of operational creditor or person
authorised to act on his behalf
[Please enclose the authority if this is being
submitted on behalf of an operational creditor]
Name in BLOCK LETTERS
Position with or in relation to creditor
Address of person signing
62
*PAN number, passport, AADHAAR Card or the
identity card issued by the Election Commission of
India.”
(Emphasis supplied)
23. In the passage of the Bills which ultimately became the
Code, various important changes have taken place. The
original definition of “dispute” has now become an inclusive
definition, the word “bona fide” before “suit or arbitration
proceedings” being deleted. In Section 8(1), the words “through
an information utility, wherever applicable, or by registered post
or courier or by any electronic communication” have been
deleted. Likewise, in Section 8(2), the period of “at least 60
days … through an information utility or by registered post or
courier or by any electronic communication” has also been
deleted. In Section 9(5), the absence of a proviso similar to the
proviso occurring in Section 7(5) was also rectified. Further,
the time periods of 2 and 3 days were uniformly substituted, as
has been seen above, by 7 days, so that a sufficiently long
period is given to do the needful.
63
24. The scheme under Sections 8 and 9 of the Code, appears
to be that an operational creditor, as defined, may, on the
occurrence of a default (i.e., on non-payment of a debt, any part
whereof has become due and payable and has not been
repaid), deliver a demand notice of such unpaid operational
debt or deliver the copy of an invoice demanding payment of
such amount to the corporate debtor in the form set out in Rule
5 of the Insolvency and Bankruptcy (Application to Adjudicating
Authority) Rules, 2016 read with Form 3 or 4, as the case may
be (Section 8(1)). Within a period of 10 days of the receipt of
such demand notice or copy of invoice, the corporate debtor
must bring to the notice of the operational creditor the existence
of a dispute and/or the record of the pendency of a suit or
arbitration proceeding filed before the receipt of such notice or
invoice in relation to such dispute (Section 8(2)(a)). What is
important is that the existence of the dispute and/or the suit or
arbitration proceeding must be pre-existing – i.e. it must exist
before the receipt of the demand notice or invoice, as the case
may be. In case the unpaid operational debt has been repaid,
the corporate debtor shall within a period of the self-same 10
64
days send an attested copy of the record of the electronic
transfer of the unpaid amount from the bank account of the
corporate debtor or send an attested copy of the record that the
operational creditor has encashed a cheque or otherwise
received payment from the corporate debtor (Section 8(2)(b)). It
is only if, after the expiry of the period of the said 10 days, the
operational creditor does not either receive payment from the
corporate debtor or notice of dispute, that the operational
creditor may trigger the insolvency process by filing an
application before the adjudicating authority under Sections
9(1) and 9(2). This application is to be filed under Rule 6 of the
Insolvency and Bankruptcy (Application to Adjudicating
Authority) Rules, 2016 in Form 5, accompanied with documents
and records that are required under the said form. Under Rule
6(2), the applicant is to dispatch by registered post or speed
post, a copy of the application to the registered office of the
corporate debtor. Under Section 9(3), along with the
application, the statutory requirement is to furnish a copy of the
invoice or demand notice, an affidavit to the effect that there is
no notice given by the corporate debtor relating to a dispute of
65
the unpaid operational debt and a copy of the certificate from
the financial institution maintaining accounts of the operational
creditor confirming that there is no payment of an unpaid
operational debt by the corporate debtor. Apart from this
information, the other information required under Form 5 is also
to be given. Once this is done, the adjudicating authority may
either admit the application or reject it. If the application made
under sub-section (2) is incomplete, the adjudicating authority,
under the proviso to sub-section 5, may give a notice to the
applicant to rectify defects within 7 days of the receipt of the
notice from the adjudicating authority to make the application
complete. Once this is done, and the adjudicating authority
finds that either there is no repayment of the unpaid operational
debt after the invoice (Section 9(5)(i)(b)) or the invoice or notice
of payment to the corporate debtor has been delivered by the
operational creditor (Section 9(5)(i)(c)), or that no notice of
dispute has been received by the operational creditor from the
corporate debtor or that there is no record of such dispute in the
information utility (Section 9(5)(i)(d)), or that there is no
disciplinary proceeding pending against any resolution
66
professional proposed by the operational creditor (Section
9(5)(i)(e)), it shall admit the application within 14 days of the
receipt of the application, after which the corporate insolvency
resolution process gets triggered. On the other hand, the
adjudicating authority shall, within 14 days of the receipt of an
application by the operational creditor, reject such application if
the application is incomplete and has not been completed
within the period of 7 days granted by the proviso (Section
9(5)(ii)(a)). It may also reject the application where there has
been repayment of the operational debt (Section 9(5)(ii)(b)), or
the creditor has not delivered the invoice or notice for payment
to the corporate debtor (Section 9(5)(ii)(c)). It may also reject
the application if the notice of dispute has been received by the
operational creditor or there is a record of dispute in the
information utility (Section 9(5)(ii)(d)). Section 9(5)(ii)(d) refers
to the notice of an existing dispute that has so been received,
as it must be read with Section 8(2)(a). Also, if any disciplinary
proceeding is pending against any proposed resolution
professional, the application may be rejected (Section
9(5)(ii)(e)).
67
25. Therefore, the adjudicating authority, when examining an
application under Section 9 of the Act will have to determine:
(i) Whether there is an “operational debt” as defined
exceeding Rs.1 lakh? (See Section 4 of the Act)
(ii) Whether the documentary evidence furnished with the
application shows that the aforesaid debt is due and
payable and has not yet been paid? and
(iii) Whether there is existence of a dispute between the
parties or the record of the pendency of a suit or
arbitration proceeding filed before the receipt of the
demand notice of the unpaid operational debt in relation
to such dispute?
If any one of the aforesaid conditions is lacking, the
application would have to be rejected.
Apart from the above, the adjudicating authority must
follow the mandate of Section 9, as outlined above, and in
particular the mandate of Section 9(5) of the Act, and admit or
68
reject the application, as the case may be, depending upon the
factors mentioned in Section 9(5) of the Act.
26. Another thing of importance is the timelines within which
the insolvency resolution process is to be triggered. The
corporate debtor is given 10 days from the date of receipt of
demand notice or copy of invoice to either point out that a
dispute exists between the parties or that he has since repaid
the unpaid operational debt. If neither exists, then an
application once filed has to be disposed of by the adjudicating
authority within 14 days of its receipt, either by admitting it or
rejecting it. An appeal can then be filed to the Appellate
Tribunal under Section 61 of the Act within 30 days of the order
of the Adjudicating Authority with an extension of 15 further
days and no more.
27. Section 64 of the Code mandates that where these
timelines are not adhered to, either by the Tribunal or by the
Appellate Tribunal, they shall record reasons for not doing so
within the period so specified and extend the period so
specified for another period not exceeding 10 days. Even in
69
appeals to the Supreme Court from the Appellate Tribunal
under Section 62, 45 days time is given from the date of receipt
of the order of the Appellate Tribunal in which an appeal to the
Supreme Court is to be made, with a further grace period not
exceeding 15 days. The strict adherence of these timelines is
of essence to both the triggering process and the insolvency
resolution process. As we have seen, one of the principal
reasons why the Code was enacted was because liquidation
proceedings went on interminably, thereby damaging the
interests of all stakeholders, except a recalcitrant management
which would continue to hold on to the company without paying
its debts. Both the Tribunal and the Appellate Tribunal will do
well to keep in mind this principal objective sought to be
achieved by the Code and will strictly adhere to the time frame
within which they are to decide matters under the Code.
28. It is now important to construe Section 8 of the Code.
The operational creditors are those creditors to whom an
operational debt is owed, and an operational debt, in turn,
means a claim in respect of the provision of goods or services,
70
including employment, or a debt in respect of repayment of
dues arising under any law for the time being in force and
payable to the Government or to a local authority. This has to
be contrasted with financial debts that may be owed to financial
creditors, which was the subject matter of the judgment
delivered by this Court on 31.8.2017 in Innoventive Industries
Ltd. v. ICICI Bank & Anr. (Civil Appeal Nos.8337-8338 of
2017). In this judgment, we had held that the adjudicating
authority under Section 7 of the Code has to ascertain the
existence of a default from the records of the information utility
or on the basis of evidence furnished by the financial creditor
within 14 days. The corporate debtor is entitled to point out to
the adjudicating authority that a default has not occurred; in the
sense that a debt, which may also include a disputed claim, is
not due i.e. it is not payable in law or in fact. This Court then
went on to state:
“29. The scheme of Section 7 stands in contrast
with the scheme under Section 8 where an
operational creditor is, on the occurrence of a
default, to first deliver a demand notice of the
unpaid debt to the operational debtor in the manner
provided in Section 8(1) of the Code. Under
71
Section 8(2), the corporate debtor can, within a
period of 10 days of receipt of the demand notice or
copy of the invoice mentioned in sub-section (1),
bring to the notice of the operational creditor the
existence of a dispute or the record of the pendency
of a suit or arbitration proceedings, which is preexisting
– i.e. before such notice or invoice was
received by the corporate debtor. The moment
there is existence of such a dispute, the operational
creditor gets out of the clutches of the Code.
30. On the other hand, as we have seen, in the
case of a corporate debtor who commits a default of
a financial debt, the adjudicating authority has
merely to see the records of the information utility or
other evidence produced by the financial creditor to
satisfy itself that a default has occurred. It is of no
matter that the debt is disputed so long as the debt
is “due” i.e. payable unless interdicted by some law
or has not yet become due in the sense that it is
payable at some future date. It is only when this is
proved to the satisfaction of the adjudicating
authority that the adjudicating authority may reject
an application and not otherwise.”
29. It is, thus, clear that so far as an operational creditor is
concerned, a demand notice of an unpaid operational debt or
copy of an invoice demanding payment of the amount involved
must be delivered in the prescribed form. The corporate debtor
is then given a period of 10 days from the receipt of the
demand notice or copy of the invoice to bring to the notice of
the operational creditor the existence of a dispute, if any. We
72
have also seen the notes on clauses annexed to the Insolvency
and Bankruptcy Bill of 2015, in which “the existence of a
dispute” alone is mentioned. Even otherwise, the word “and”
occurring in Section 8(2)(a) must be read as “or” keeping in
mind the legislative intent and the fact that an anomalous
situation would arise if it is not read as “or”. If read as “and”,
disputes would only stave off the bankruptcy process if they are
already pending in a suit or arbitration proceedings and not
otherwise. This would lead to great hardship; in that a dispute
may arise a few days before triggering of the insolvency
process, in which case, though a dispute may exist, there is no
time to approach either an arbitral tribunal or a court. Further,
given the fact that long limitation periods are allowed, where
disputes may arise and do not reach an arbitral tribunal or a
court for upto three years, such persons would be outside the
purview of Section 8(2) leading to bankruptcy proceedings
commencing against them. Such an anomaly cannot possibly
have been intended by the legislature nor has it so been
intended. We have also seen that one of the objects of the
Code qua operational debts is to ensure that the amount of
73
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 is for this
reason that it is enough that a dispute exists between the
parties.
30. It is settled law that the expression “and” may be read as
“or” in order to further the object of the statute and/or to avoid
an anomalous situation. Thus, in Samee Khan v. Bindu Khan
(1998) 7 SCC 59 at 64, this Court held:
“14. Since the word “also” can have meanings such
as “as well” or “likewise”, cannot those meanings be
used for understanding the scope of the trio words
“and may also”? Those words cannot altogether be
detached from the other words in the sub-rule. Here
again the word “and” need not necessarily be
understood as denoting a conjunctive sense.
In Stroud’s Judicial Dictionary, it is stated that the
word “and” has generally a cumulative sense, but
sometimes it is by force of a context read as “or”.
Maxwell on Interpretation of Statutes has
recognised the above use to carry out the
interpretation of the legislature. This has been
approved by this Court in Ishwar Singh
Bindra v. State of U.P. [AIR 1968 SC 1450 : 1969
Cri LJ 19]. The principle of noscitur a sociis can
profitably be used to construct the words “and may
also” in the sub-rule.”
74
31. In Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd.
(2008) 4 SCC 755 at 765, this Court held:
“26. It may be noted that Section 86(1)(f) of the Act
of 2003 is a special provision for adjudication of
disputes between the licensee and the generating
companies. Such disputes can be adjudicated upon
either by the State Commission or the person or
persons to whom it is referred for arbitration. In our
opinion the word “and” in Section 86(1)(f) between
the words “generating companies” and “to refer any
dispute for arbitration” means “or”. It is well settled
that sometimes “and” can mean “or” and sometimes
“or” can mean “and” (vide G.P. Singh’s Principles of
Statutory Interpretation, 9th Edn., 2004, p. 404).
27. In our opinion in Section 86(1)(f) of the
Electricity Act, 2003 the word “and” between the
words “generating companies” and the words “refer
any dispute” means “or”, otherwise it will lead to an
anomalous situation because obviously the State
Commission cannot both decide a dispute itself and
also refer it to some arbitrator. Hence the word
“and” in Section 86(1)(f) means “or”.”
32. In a recent judgment in Maharishi Mahesh Yogi Vedic
Vishwavidyalaya v. State of M.P. (2013) 15 SCC 677 at 718,
this Court held:
“93. Besides the above two decisions, which
discuss about the methodology of interpretation of a
statute, we also refer to the following decisions
75
rendered by this Court in Ishwar Singh
Bindra [Ishwar Singh Bindra v. State of U.P., AIR
1968 SC 1450 : 1969 Cri LJ 19], wherein in para 11
it has been held as under: (AIR p. 1454)
“11. … It would be much more
appropriate in the context to read it
disconjunctively. In Stroud’s Judicial
Dictionary, 3rd Edn., it is stated at p.
135 that ‘and’ has generally a
cumulative sense, requiring the
fulfilment of all the conditions that it joins
together, and herein it is the antithesis
of or. Sometimes, however, even in
such a connection, it is, by force of a
context, read as ‘or’. Similarly in
Maxwell on Interpretation of Statutes,
11th Edn., it has been accepted that ‘to
carry out the intention of the legislature
it is occasionally found necessary to
read the conjunctions “or” and “and” one
for the other’.”
94. We may also refer to para 4 of the decision
rendered by this Court in Director of Mines
Safety v. Tandur and Nayandgi Stone Quarries (P)
Ltd. [(1987) 3 SCC 208] : (SCC p. 211, para 4)
“4. According to the plain meaning, the
exclusionary clause in sub-section (1) of
Section 3 of the Act read with the two
provisos beneath clauses (a) and (b),
the word ‘and’ at the end of para (b) of
sub-clause (ii) of the proviso to clause
(a) of Section 3(1) must in the context in
which it appears, be construed as ‘or’;
and if so construed, the existence of any
one of the three conditions stipulated in
paras (a), (b) and (c) would at once
76
attract the proviso to clauses (a) and (b)
of sub-section (1) of Section 3 and
thereby make the mine subject to the
provisions of the Act. The High Court
overlooked the fact that the use of the
negative language in each of the three
clauses implied that the word ‘and’ used
at the end of clause (b) had to be read
disjunctively. That construction of ours is
in keeping with the legislative intent
manifested by the scheme of the Act
which is primarily meant for ensuring the
safety of workmen employed in the
mines.”
33. This being the case, is it not open to the adjudicating
authority to then go into whether a dispute does or does not
exist?
34. It is important to notice that Section 255 read with the
Eleventh Schedule of the Code has amended Section 271 of
the Companies Act, 2013 so that a company being unable to
pay its debts is no longer a ground for winding up a company.
The old law contained in Madhusudan (supra) has, therefore,
disappeared with the disappearance of this ground in Section
271 of the Companies Act.
77
35. We have already noticed that in the first Insolvency and
Bankruptcy Bill, 2015 that was annexed to the Bankruptcy Law
Reforms Committee Report, Section 5(4) defined “dispute” as
meaning a “bona fide suit or arbitration proceedings…”. In its
present avatar, Section 5(6) excludes the expression “bona
fide” which is of significance. Therefore, it is difficult to import
the expression “bona fide” into Section 8(2)(a) in order to judge
whether a dispute exists or not.
36. The expression “existence” has been understood as
follows:
“The Shorter Oxford English Dictionary gives the
following meaning of the word “existence”:
a) Reality, as opp to appearance.
b) The fact or state of existing; actual possession
of being. Continued being as a living creature, life,
esp. under adverse conditions.
Something that exists; an entity, a being. All that
exists. (Page 894 – Oxford English Dictionary)”
37. Two extremely instructive judgments, one of the
Australian High Court, and the other of the Chancery Division in
the UK, throw a great deal of light on the expression “existence
78
of a dispute” contained in Section 8(2)(a) of the Code. The
Australian judgment is reported as Spencer
Constructions Pty Ltd v. G & M Aldridge Pty Ltd. [1997] FCA
681. The Australian High Court had to construe Section 459H
of the Corporations Law, which read as under:
“(1) .......
(a) that there is a genuine dispute between the
company and the respondent about the existence or
amount of a debt to which the demand relates;
(b) ........ ”
The expression “genuine dispute” was then held to mean
the following:
Finn J was content to adopt the explanation of
“genuine dispute” given by McLelland CJ in Eq
in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR
785 at 787 where his Honour said:
“In my opinion [the] expression connotes a plausible
contention requiring investigation, and raises much
the same sort of considerations as the ‘serious
question to be tried’ criterion which arises on an
application for an interlocutory injunction or for the
extension or removal of a caveat. This does not
mean that the court must accept uncritically as
giving rise to a genuine dispute, every statement in
an affidavit ‘however equivocal, lacking in precision,
inconsistent with undisputed contemporary
documents or other statements by the same
79
deponent, or inherently and probable in itself, it may
be not having ‘sufficient prima facie plausibility to
merit further investigation as to [its] truth’ (cf Eng
Mee Yong v Letchumanan [1980] AC 331 at 341), or
‘a patently feeble legal argument or an assertion of
facts unsupported by evidence’: cf South Australia v
Wall (1980) 24 SASR 189 at 194.”
His Honour also referred to the judgment of
Lindgren J in Rohala Pharmaceutical Pty Ltd (supra)
where, at 353, his Honour said:
“The provisions [of s 459H(1) and (5)] assume that
the dispute and offsetting claim have an ‘objective’
existence the genuineness of which is capable of
being assessed. The word ‘genuine’ is included [in
‘genuine dispute’] to sound a note of warning that
the propounding of serious disputes and claims is to
be expected but must be excluded from
consideration”.
There have been numerous decisions of single
judges in this Court and in State Supreme Courts
which have analysed, in different ways, the
approach a court should take in determining
whether there is “a genuine dispute” for the
purposes of s 459H of the Corporations Law. What
is clear is that in considering applications to set
aside a statutory demand, a court will not determine
contested issues of fact or law which have a
significant or substantial basis. One finds
formulations such as:
“... at least in most cases, it is not expected that the
court will embark upon any extended enquiry in
order to determine whether there is a genuine
dispute between the parties and certainly will not
attempt to weigh the merits of that dispute. All that
the legislation requires is that the court conclude
80
that there is a dispute and that it is a genuine
dispute”.
See Mibor Investments Pty Ltd v Commonwealth
Bank of Australia (1993) 11 ACSR 362 at 366-
7, followed by Ryan J in Moyall Investments
Services Pty Ltd v White (1993) 12 ACSR 320
at 324.
Another formulation has been expressed as follows:
“It is clear that what is required in all cases is
something between mere assertion and the proof
that would be necessary in a court of law.
Something more than mere assertion is required
because if that were not so then anyone could
merely say it did not owe a debt ...”
See John Holland Construction and Engineering Pty
Ltd v Kilpatrick Green Pty Ltd (1994) 12 ACLC 716
at 718, followed by Northrop J in Aquatown Pty Ltd
v Holder Stroud Pty Ltd (Federal Court of Australia,
25 June 1996, unreported).
In Re Morris Catering (Australia) Pty Ltd (1993) 11
ACSR 601 at 605, Thomas J said:
“There is little doubt that Div 3 is intended to be a
complete code which prescribes a formula that
requires the court to assess the position between
the parties, and preserve demands where it can be
seen that there is no genuine dispute and no
sufficient genuine offsetting claim. That is not to say
that the court will examine the merits or settle the
dispute. The specified limits of the court’s
examination are the ascertainment of whether there
is a ‘genuine dispute’ and whether there is a
‘genuine claim’.
It is often possible to discern the spurious, and to
identify mere bluster or assertion. But beyond a
perception of genuineness (or the lack of it) the
81
court has no function. It is not helpful to perceive
that one party is more likely than the other to
succeed, or that the eventual state of the account
between the parties is more likely to be one result
than another.
The essential task is relatively simple - to identify
the genuine level of a claim (not the likely result of
it) and to identify the genuine level of an offsetting
claim (not the likely result of it).”
In Scanhill Pty Ltd v Century 21 Australasia Pty
Ltd (1993) 12 ACSR 341 at 357 Beazley J said:
“... the test to be applied for the purposes
of s 459H is whether the court is satisfied that there
is a serious question to be tried that the applicant
has an offsetting claim”.
In Chadwick Industries (South Coast) Pty Ltd v
Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37
at 39, Lockhart J said:
“... what appears clearly enough from all the
judgments is that a standard of satisfaction which a
court requires is not a particularly high one. I am for
present purposes content to adopt any of the
standards that are referred to in the cases ... The
highest of the thresholds is probably the test
enunciated by Beazley J, though for myself I discern
no inconsistency between that test and the
statements in the other cases to which I have
referred. However, the application of Beazley J’s
test will vary according to the circumstances of the
case.
Certainly the court will not examine the merits of the
dispute other than to see if there is in fact a genuine
dispute. The notion of a ‘genuine dispute’ in this
context suggests to me that the court must be
satisfied that there is a dispute that is not plainly
82
vexatious or frivolous. It must be satisfied that there
is a claim that may have some substance”.
In Greenwood Manor Pty Ltd v Woodlock (1994) 48
FCR 229 Northrop J referred to the formulations of
Thomas J in Re Morris Catering (Australia) Pty
Ltd (1993) 11 ACLC 919, 922 and Hayne J in Mibor
Investments Pty Ltd v Commonwealth Bank of
Australia (supra), where he noted the dictionary
definition of “genuine” as being in this context “not
spurious ... real or true” and concluded (at 234):
“Although it is true that the Court, on an application
under ss 459G and 459H is not entitled to decide a
question as to whether a claim will succeed or not, it
must be satisfied that there is a genuine dispute
between the company and the respondent about the
existence of the debt. If it can be shown that the
argument in support of the existence of a genuine
dispute can have no possible basis whatsoever, in
my view, it cannot be said that there is a genuine
dispute. This does not involve, in itself, a
determination of whether the claim will succeed or
not, but it does go to the reality of the dispute, to
show that it is real or true and not merely spurious”.
In our view a “genuine” dispute requires that:
• the dispute be bona fide and truly exist in fact;
• the grounds for alleging the existence of a
dispute are real and not spurious, hypothetical,
illusory or misconceived.
We consider that the various formulations referred
to above can be helpful in determining whether
there is a genuine dispute in a particular case,
so long as the formulation used does not become a
substitute for the words of the statute.”
83
38. To similar effect is the judgment of the Chancery Division
in Hayes v. Hayes (2014) EWHC 2694 (Ch) under the U.K.
Insolvency Rules. The Chancery Division held:
“I do not think it necessary, for the purposes of this
appeal, to embark on a survey of the authorities as
to precisely what is involved in a genuine and
substantial cross-claim. It is clear that on the one
hand, the court does not need to be satisfied that
there is a good claim or even that it is a claim which
is prima facie likely to succeed. In In re Bayoil
SA [1999] 1 WLR 147 itself, Nourse LJ referred, at p
153, to what Harman LJ had said in In re LHF
Wools Ltd [1970] Ch 27, 36 where Harman LJ,
having referred to a previous case, said:
“The majority decided in that case that,
shadowy as the cross-claim was and
improbable as the events said to
support it seemed to be, there was just
enough to make the principle work,
namely, that it was right to have the
matter tried out before the axe fell.”
On the other hand, the court should be alert to
detect wholly spurious claims merely being put
forward by an unwilling debtor to raise what has
been called “a cloud of objections” as I referred to
earlier.”
39. Interestingly enough in In Re: Portman Provincial
Cinemas Ltd. (1999) 1 WLR 157, a sharply divided Court of
Appeal had to decide whether a winding up petition should be
84
dismissed on the ground that a cross-claim had to be tried.
Lord Denning, the minority Judge put it thus:
“It comes to this: Mr. Hymanson has put forward a
most astonishing claim for an indemnity against
losses in perpetuity—based on an oral agreement
eight years ago—in a railway carriage or a solicitor’s
office—with nothing to support it at all: against a
man now dead. If there was substance in it fit for the
court to consider, he should have condescended to
a great deal more particularity. At all events, he
should have done so if he wished to convince me. I
do not think this cross-claim has any substance at
all. I would reject it as an answer to this creditor’s
debt and I would allow the appeal accordingly.”
On the other hand, Justice Harman in agreeing with the
Chancery Division judgment, held:
“I do not think that on this proceeding we are
entitled to adjudicate upon that matter. I do not think
we ought to reject out of hand statements on oath
by Mr. Hymanson and Mr. Waller which,
unsatisfactory as they may be, do yet set up
affirmatively this story. There is nobody, of course,
to contradict them. I think we must take it that there
is at least a chance that the judge will believe that
story and will agree that there was such a bargain
made, and, moreover, that it was an inherent part of
the sale agreement.
xxx xxx xxx
Therefore, I have had grave doubts about this
matter but I have come to the conclusion on the
85
whole that it cannot be said that the story was so
vague and the likelihood of success so slight that
we can say there was no substance in the crossclaim.
I think the judge was right to say that the
matter ought to go to trial, and therefore according
to the modern practice the petition should be
dismissed, and I would so hold.”
Similarly, Russell L.J. held:
“Lord Denning M.R. has taken the view that the
deponents of the company really have made up this
story, so strong are the circumstances which seem
to point in the opposite direction. As I have said, I
agree it is a most extraordinary story, but I am not
prepared, merely on the basis of affidavits and
circumstances appearing in the Companies Court,
to hold that really not only is their story strange, but
palpably untrue.”
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
86
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 above. So long as
a dispute truly exists in fact and is not spurious, hypothetical or
illusory, the adjudicating authority has to reject the application.
41. Coming to the facts of the present case, it is clear that the
argument of Shri Mohta that the requisite certificate by IDBI
was not given in time will have to be rejected, inasmuch as
neither the appellant nor the Tribunal raised any objection to
the application on this score. The confirmation from a financial
institution that there is no payment of an unpaid operational
debt by the corporate debtor is an important piece of
information that needs to be placed before the adjudicating
87
authority, under Section 9 of the Code, but given the fact that
the adjudicating authority has not dismissed the application on
this ground and that the appellant has raised this ground only at
the appellate stage, we are of the view that the application
cannot be dismissed at the threshold for want of this certificate
alone.
42. On the other hand, Shri Mohta is on firmer ground when
he argues that a dispute certainly exists on the facts of the
present case and that, therefore, the application ought to have
been dismissed on this ground.
43. According to learned counsel for the respondent, the
definition of “dispute” would indicate that since the NDA does
not fall within any of the three sub-clauses of Section 5(6), no
“dispute” is there on the facts of this case. We are afraid that
we cannot accede to such a contention. First and foremost, the
definition is an inclusive one, and we have seen that the word
“includes” substituted the word “means” which occurred in the
first Insolvency and Bankruptcy Bill. Secondly, the present is
not a case of a suit or arbitration proceeding filed before receipt
88
of notice – Section 5(6) only deals with suits or arbitration
proceedings which must “relate to” one of the three subclauses,
either directly or indirectly. We have seen that a
“dispute” is said to exist, so long as there is a real dispute as to
payment between the parties that would fall within the inclusive
definition contained in Section 5(6). The correspondence
between the parties would show that on 30th January, 2015, the
appellant clearly informed the respondent that they had
displayed the appellant’s confidential client information and
client campaign information on a public platform which
constituted a breach of trust and a breach of the NDA between
the parties. They were further told that all amounts that were
due to them were withheld till the time the matter is resolved.
On 10th February, 2015, the respondent referred to the NDA of
26th December, 2014 and denied that there was a breach of the
NDA. The respondent went on to state that the appellant’s
claim is unfounded and untenable, and that the appellant is
trying to avoid its financial obligations, and that a sum of
Rs.19,08,202.57 should be paid within one week, failing which
the respondent would be forced to explore legal options and
89
initiate legal process for recovery of the said amount. This email
was refuted by the appellant by an e-mail dated 26th
February, 2015 and the appellant went on to state that it had
lost business from various clients as a result of the
respondent’s breaches. Curiously, after this date, the
respondent remained silent, and thereafter, by an e-mail dated
20th June, 2016, the respondent wished to revive business
relations and stated that it would like to follow up for payments
which are long stuck up. This was followed by an e-mail dated
25th June, 2016 to finalize the time and place for a meeting. On
28th June, 2016, the appellant wrote to the respondent again to
finalize the time and place. Apparently, nothing came of the
aforesaid e-mails and the appellant then fired the last shot on
19th September, 2016, reiterating that no payments are due as
the NDA was breached.
44. The demand notice sent by the respondent was disputed
in detail by the appellant in its reply dated 27th December, 2016,
which set out the e-mail of 30th January, 2015. The appellant
then went on to state:
90
“Sometime during June and September 2016, an
officer of your Client, one Mr. Jasmeet Singh wrote
to our Client that he wanted to meet and revive
business relationship and exploring common
interest points to work together. In fact, in his email,
he admits that there should be resolution to the
impending payments thereby implying that there
was (a) a dispute (as defined under the Code) and
(b) there was a breach of the NDA which needed to
be resolved. Mr. Singh’s emails to our client were
sent after 1 year and 6 months had elapsed
from the date of our Client’s email of 30 January
2015. This clearly shows that your Client was silent
during this period and had not bothered to answer
the questions raised by our Client. Hence, once
again in September, our Client called upon your
Client to explain its breach of the NDA. Your Client
instead of explaining its breach of the NDA
remained silent for about 3 months and thereafter
chooses to issue the Notice as a form of pressure
tactic and extort monies from our Client for your
Client’s breach of the NDA. All the conduct of your
Client explicitly shows laches on its part.
Your Clients should note that under the NDA, it has
agreed that a breach of the NDA will cause
irreparable damage to our Client and our Client is
entitled to all remedies under law or equity against
your Client for the enforcement of the NDA.
Accordingly, given the severity of the breaches of
the NDA committed by your Client, the delay and
laches committed by your Client and the conduct of
your Client, our Client is not liable to make
payments to your Client against the breaches of the
NDA and the delay and laches committed by your
Client. In fact, at this stage, our Client is
contemplating initiating necessary legal actions
against your Client and its parent company for the
breach of the NDA to seek further compensations
91
and damages and other legal and equitable
remedies against your Client and its parent
company.”
45. Going by the aforesaid test of “existence of a dispute”, it
is clear that without going into the merits of the dispute, the
appellant has raised a plausible contention requiring further
investigation which is not a patently feeble legal argument or an
assertion of facts unsupported by evidence. The defense is not
spurious, mere bluster, plainly frivolous or vexatious. A dispute
does truly exist in fact between the parties, which may or may
not ultimately succeed, and the Appellate Tribunal was wholly
incorrect in characterizing the defense as vague, got-up and
motivated to evade liability.
46. Learned counsel for the respondent, however, argued
that the breach of the NDA is a claim for unliquidated damages
which does not become crystallized until legal proceedings are
filed, and none have been filed so far. The period of limitation
for filing such proceedings has admittedly not yet elapsed.
Further, the appellant has withheld amounts that were due to
the respondent under the NDA till the matter is resolved.
92
Admittedly, the matter has never been resolved. Also, the
respondent itself has not commenced any legal proceedings
after the e-mail dated 30th January, 2015 except for the present
insolvency application, which was filed almost 2 years after the
said e-mail. All these circumstances go to show that it is right to
have the matter tried out in the present case before the axe
falls.
47. We, therefore, allow the present appeal and set aside the
judgment of the Appellate Tribunal. There shall, however, be
no order as to costs.
…………………………......J.
(R.F. Nariman)
..……………………...........J.
(Sanjay Kishan Kaul)
New Delhi;
September 21, 2017.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9405 OF 2017
Mobilox Innovations Private Limited … Appellant
Versus
Kirusa Software Private Limited … Respondent
J U D G M E N T
R.F. Nariman, J.
1. The present appeal raises questions as to the triggering
of the Insolvency and Bankruptcy Code, 2016 when it comes to
operational debts owed to operational creditors. The appellant
was engaged by Star TV for conducting tele-voting for the
“Nach Baliye” program on Star TV. The appellant in turn subcontracted
the work to the respondent and issued purchase
2
orders between October and December, 2013 in favour of the
respondent. In the “Nach Baliye” program, the successful
dancer was to be selected on various bases, including viewers’
votes. For this purpose, the respondent was to provide toll free
telephone numbers across India, through which the viewers of
the program could cast their votes in favour of one or more
participants. For this purpose, a software was customized by
the respondent, who then coordinated the results and provided
them to the appellant. Since the respondent obtained toll free
numbers from telephone operators in terms of the purchase
orders, the appellant was liable to make payment of rentals for
the toll free numbers, as well as primary rate interface rental to
the telecom operators. The respondent provided the requisite
services and raised monthly invoices between December, 2013
and November, 2014 – the invoices were payable within 30
days from the date on which they were received. The
respondent followed up with the appellant for payment of
pending invoices through e-mails sent between April and
October, 2014. It is also important to note that a non-disclosure
agreement (hereinafter referred to as the NDA) was executed
3
between the parties on 26th December, 2014 with effect from 1st
November, 2013.
2. More than a month after execution of the aforesaid
agreement, the appellant, on 30th January, 2015, wrote to the
respondent that they were withholding payments against
invoices raised by the respondent, as the respondent had
disclosed on their webpage that they had worked for the “Nach
Baliye” program run by Star TV, and had thus breached the
NDA. The correspondence between the parties finally
culminated in a notice dated 12th December, 2016 sent under
Section 271 of the Companies Act, 2013. Presumably because
winding up on the ground of being unable to pay one’s debts
was no longer a ground to wind up a company under the said
Act, a demand notice dated 23rd December, 2016 was sent for
a total of Rs.20,08,202.55 under Section 8 of the new
Insolvency and Bankruptcy Code, 2016 (hereinafter referred to
as the Code). By an e-mail dated 27th December, 2016, the
appellant responded to the aforesaid notice stating that there
exists serious and bona fide disputes between the parties, that
4
the notice issued was a pressure tactic, and that nothing was
payable inasmuch as the respondent had been told way back
on 30th January, 2015 that no amount will be paid to the
respondent since it had breached the NDA.
3. An application was then filed on 30th December, 2016
before the National Company Law Tribunal under Sections 8
and 9 of the new Code stating that an operational debt of
Rs.20,08,202.55 was owed to the respondent.
4. On 19th January, 2017, the respondent was orally
intimated to remove a defect in the application, in that it did not
contain the appellant’s notice of dispute. This was rectified by
an affidavit in compliance dated 24th January, 2017, by which
various other documents were also supplied by the respondent
to the Tribunal. On 27th January, 2017, the Tribunal dismissed
the aforesaid application in the following terms:
“On perusal of this notice dated 27.12.2016
disputing the debt allegedly owed to the petitioner,
this Bench, looking at the Corporate Debtor
disputing the claim raised by the Petitioner in this
CP, hereby holds that the default payment being
disputed by the Corporate Debtor, for the petitioner
has admitted that the notice of dispute dated 27th
5
December 2016 has been received by the
operational creditor, the claim made by the
Petitioner is hit by Section (9)(5)(ii)(d) of The
Insolvency and Bankruptcy Code, hence this
Petition is hereby rejected.”
5. An appeal was then filed before the National Company
Law Appellate Tribunal which was decided on 24th May, 2017.
This appeal was allowed in the following terms:
“39. In the present case the adjudicating authority
has acted mechanically and rejected the application
under sub-section (5)(ii)(d) of Section 9 without
examining and discussing the aforesaid issue. If the
adjudicating authority would have noticed the
provisions as discussed above and what constitutes
‘dispute’ in relation to services provided by
operational creditors then it would have come to a
conclusion that condition of demand notice under
sub-section (2) of Section 8 has not been fulfilled by
the corporate debtor and the defence claiming
dispute was not only vague, got up and motivated to
evade the liability.
40. For the reasons aforesaid we set aside the
impugned order dated 27.1.2017 passed by
adjudicating authority in CP No.01/I
&BP/NCLT/MAH/2017 and remit the case to
adjudicating authority for consideration of the
application of the appellant for admission if the
application is otherwise complete.
41. The appeal is allowed with the aforesaid
observations. However, in the facts and
circumstances there shall be no order as to cost.”
6
6. Shri Mohta, learned counsel on behalf of the appellant,
raised various contentions before us. According to learned
counsel, the application should have been dismissed on the
ground that the operational creditor did not furnish a copy of the
certificate from a financial institution, viz. IDBI in the present
case, that maintained accounts of the operational creditor,
which confirmed that there is no payment of any unpaid
operational debt by the corporate debtor under Section 9(3)(c)
of the Code. This being so, the application ought to have been
dismissed at the very threshold. Apart from this, the learned
counsel took us through various committee reports and the
provisions of the Code and argued that under Section 8 of the
Code, the moment a corporate debtor, within 10 days of the
receipt of a demand notice or copy of invoice, brings to the
notice of the operational creditor the existence of a dispute
between the parties, the Tribunal is obliged to dismiss the
application. According to him, under Section (8)(2)(a), the
expression “existence of a dispute, if any, and record of the
pendency of the suit or arbitration proceedings filed …” must be
read as existence of a dispute “or” record of the pendency of
7
the suit or arbitration proceedings filed, i.e. disjunctively.
According to the learned counsel, the definition of “dispute”
under Section 5(6) of the Code is an inclusive one and the
original draft bill not only had the word “means” instead of the
word “includes”, but also the word “bona fide” before the words
“suit or arbitral proceedings”, which is missing in the present
Code. Therefore, learned counsel argued that the moment
there is existence of a dispute, meaning thereby that there is a
real dispute to be tried, and not a sham, frivolous or vexatious
dispute, the Tribunal is bound to dismiss the application.
Learned counsel went on to argue that there is a fundamental
difference between applications filed by financial creditors and
operational creditors. A financial creditor’s application is dealt
with under Section 7 of the Code, in which the adjudicating
authority has to ascertain the existence of a default on the basis
of the records of an information utility or other evidence
furnished by the financial creditor. In contrast to this scheme,
all that a corporate debtor needs to do is to file a reply within a
period of 10 days of the receipt of demand notice or copy of
invoice from an operational creditor, showing the existence of a
8
dispute, which then does not need to be “ascertained” by the
adjudicating authority. He was at pains to point out that the
application itself must contain all the documents that are
required by the statute and that the timelines indicated in the
statute are mandatory. For this purpose, he referred us to
Sections 61, 62 and 64 in addition to Sections 7 to 9 of the
Code. Finally, on facts, according to learned counsel, the
Tribunal was wholly incorrect in remanding the matter on both
counts – first, to find out whether the application is otherwise
complete and, second, because the Tribunal found that the
dispute in the present case was vague, got up and motivated to
evade the liability, which, according to learned counsel, was a
perverse conclusion reached on the facts of this case.
7. Shri Jawaharlal, learned counsel appearing on behalf of
the respondent, has argued in reply that the only notice given to
rectify the defects by the Tribunal was an oral notice of 19th
January, 2017 and that too only to supply the notice of dispute
by the appellant. This was done within time and the Tribunal,
therefore, dismissed the application only on non-fulfillment of
9
the conditions laid down in Section 9. No plea was ever taken
before the Tribunal that the IDBI certificate was not furnished.
This plea was taken for the first time only in appeal, and since
the Tribunal did not think it fit to dismiss the application on a
technical ground, this ground does not avail the appellants. The
counsel then submitted that the expression “dispute” under
Section 5(6) covers only three things, namely, existence of the
amount of debt, quality of goods or services or breach of a
representation or warranty and since what was sought to be
brought as a defense was that the NDA was breached, it would
not come within the definition of “dispute” under Section 5(6).
He further went on to state that, at best, the breach of the NDA
is a claim for unliquidated damages which does not become
crystallized until legal proceedings are filed, and none have
been filed so far. Therefore, there is no real dispute on the
facts of the present case and the Tribunal was correct in its
finding that the dispute was a sham one.
8. Before going into the contentions of fact and law argued
by both counsel, it is a little important to trace the background
10
of this path-breaking legislation viz. the Insolvency and
Bankruptcy Code, 2016. The starting point is a Resolution of
the UN General Assembly, Resolution No.59/40, passed on 2nd
December, 2004, by which it was stated:
“Legislative Guide on Insolvency Law of the
United Nations Commission on International
Trade Law
The General Assembly,
Recognizing the importance to all countries of
strong, effective and efficient insolvency regimes as
a means of encouraging economic development
and investment,
Noting the growing realization that
reorganization regimes are critical to corporate and
economic recovery, the development of
entrepreneurial activity, the preservation of
employment and the availability of finance in the
capital market,
Noting also the importance of social policy
issues to the design of an insolvency regime,
Noting with satisfaction the completion and
adoption of the Legislative Guide on Insolvency Law
of the United Nations Commission on International
Trade Law by the Commission at its thirty-seventh
session, on 25 June 2004,
Believing that the Legislative Guide, which
includes the text of the Model Law on Cross-Border
Insolvency and Guide to Enactment recommended
by the General Assembly in its resolution 52/158 of
15 December 1997, contributes significantly to the
establishment of a harmonized legal framework for
11
insolvency and will be useful both to States that do
not have an effective and efficient insolvency
regime and to States that are undertaking a process
of review and modernization of their insolvency
regimes,
Recognizing the need for cooperation and
coordination between international organizations
active in the field of insolvency law reform to ensure
consistency and alignment of that work and to
facilitate the development of international standards,
Noting that the preparation of the Legislative
Guide was the subject of due deliberations and
extensive consultations with Governments and
international intergovernmental and nongovernmental
organizations active in the field of
insolvency law reform,
1. Expresses its appreciation to the United
Nations Commission on International Trade Law for
the completion and adoption of its Legislative Guide
on Insolvency Law;
2. Requests the Secretary-General to publish
the Legislative Guide and to make all efforts to
ensure that it becomes generally known and
available;
3. Recommends that all States give due
consideration to the Legislative Guide when
assessing the economic efficiency of their
insolvency regimes and when revising or adopting
legislation relevant to insolvency;
4. Recommends also that all States continue
to consider implementation of the Model Law on
Cross-Border Insolvency of the United Nations
Commission on International Trade Law.”
12
9. The purpose of the Legislative Guide for various nations
was stated as follows:
“The purpose of the Legislative Guide on Insolvency
Law is to assist the establishment of an efficient and
effective legal framework to address the financial
difficulty of debtors. It is intended to be used as a
reference by national authorities and legislative
bodies when preparing new laws and regulations or
reviewing the adequacy of existing laws and
regulations. The advice provided in the Guide aims
at achieving a balance between the need to address
the debtor’s financial difficulty as quickly and
efficiently as possible and the interests of the
various parties directly concerned with that financial
difficulty, principally creditors and other parties with
a stake in the debtor’s business, as well as with
public policy concerns. The Guide discusses issues
central to the design of an effective and efficient
insolvency law, which, despite numerous
differences in policy and legislative treatment, are
recognized in many legal systems. It focuses on
insolvency proceedings commenced under the
insolvency law and conducted in accordance with
that law, with an emphasis on reorganization,
against a debtor, whether a legal or natural person,
that is engaged in economic activity. Issues specific
to the insolvency of individuals not so engaged,
such as consumers, are not addressed.”
In stating some of the key objectives of effective and efficient
insolvency law, the Legislative Guide goes on to state:
13
“When a debtor is unable to pay its debts and other
liabilities as they become due, most legal systems
provide a legal mechanism to address the collective
satisfaction of the outstanding claims from assets
(whether tangible or intangible) of the debtor. A
range of interests needs to be accommodated by
that legal mechanism: those of the parties affected
by the proceedings including the debtor, the owners
and management of the debtor, the creditors who
may be secured to varying degrees (including tax
agencies and other government creditors),
employees, guarantors of debt and suppliers of
goods and services, as well as the legal,
commercial and social institutions and practices that
are relevant to the design of the insolvency law and
required for its operation. Generally, the mechanism
must strike a balance not only between the different
interests of these stakeholders, but also between
these interests and the relevant social, political and
other policy considerations that have an impact on
the economic and legal goals of insolvency
proceedings.
xxx xxx xxx
An insolvency law should be transparent and
predictable. This will enable potential lenders and
creditors to understand how insolvency proceedings
operate and to assess the risk associated with their
position as a creditor in the event of insolvency.
This will promote stability in commercial relations
and foster lending and investment at lower risk
premiums. Transparency and predictability will also
enable creditors to clarify priorities, prevent disputes
by providing a backdrop against which relative
rights and risks can be assessed and help define
the limits of any discretion. Unpredictable
application of the insolvency law has the potential to
undermine not only the confidence of all participants
in insolvency proceedings, but also their willingness
14
to make credit and other investment decisions prior
to insolvency. As far as possible, an insolvency law
should clearly indicate all provisions of other laws
that may affect the conduct of the insolvency
proceedings (e.g. labour law; commercial and
contract law; tax law; laws affecting foreign
exchange, netting and set-off and debt for equity
swaps; and even family and matrimonial law).
An insolvency law should ensure that adequate
information is available in respect of the debtor’s
situation, providing incentives to encourage the
debtor to reveal its positions and, where
appropriate, sanctions for failure to do so. The
availability of this information will enable those
responsible for administering and supervising
insolvency proceedings (courts or administrative
agencies, the insolvency representative) and
creditors to assess the financial situation of the
debtor and determine the most appropriate
solution.”
While referring to the commencement of insolvency
proceedings, the Legislative Guide states:
“The standard to be met for commencement of
insolvency proceedings is central to the design of
an insolvency law. As the basis upon which
insolvency proceedings can be commenced, this
standard is instrumental to identifying the debtors
that can be brought within the protective and
disciplinary mechanisms of the insolvency law and
determining who may make an application for
commencement, whether the debtor, creditors or
other parties.
As a general principle it is desirable that the
commencement standard be transparent and
15
certain, facilitating access to insolvency
proceedings conveniently, cost-effectively and
quickly to encourage financially distressed or
insolvent businesses to voluntarily commence
proceedings. It is also desirable that access be
flexible in terms of the types of insolvency
proceedings available (reorganization and
liquidation), and the ease with which the
proceedings most relevant to a particular debtor can
be accessed, and that conversion between the
different types of proceeding can be achieved.
Restrictive access can deter both debtors and
creditors from commencing proceedings, while the
effects of delay can be harmful to the value of
assets and the successful completion of insolvency
proceedings, in particular in cases of reorganization.
Ease of access needs to be balanced with proper
and adequate safeguards to prevent improper use
of proceedings. Examples of improper use may
include application by a debtor that is not in financial
difficulty in order to take advantage of the
protections provided by the insolvency law, such as
the automatic stay, or to avoid or delay payment to
creditors and application by creditors who are
competitors of the debtor, where the purpose of the
application is to take advantage of insolvency
proceedings to disrupt the debtor’s business and
thus gain a competitive edge.”
10. On the fixation of time limits and denial of an application
to commence proceedings, the Legislative Guide states:
“Where a court is required to make a decision as to
commencement, it is desirable that that decision be
made in a timely manner to ensure both certainty
and predictability of the decision-making and the
16
efficient conduct of the proceedings without delay.
This will be particularly important in the case of
reorganization to avoid further diminution of the
value of assets and to improve the chances of a
successful reorganization. Some insolvency laws
prescribe set time periods after the application
within which the decision to commence must be
made. These laws often distinguish between
applications by debtors and by creditors, with
applications by debtors tending to be determined
more quickly. Any additional period for creditor
applications is designed to allow prompt notice to be
given to the debtor and provide the debtor with an
opportunity to respond to the application.
Although the approach of fixing time limits may
serve the objectives of providing certainty and
transparency for both the debtor and creditors, the
achievement of those objectives may need to be
balanced against possible disadvantages. For
example, a fixed time period may be insufficiently
flexible to take account of the circumstances of the
particular case. More generally, such time periods
may be set without regard to the resources
available to the body responsible for supervising
insolvency proceedings or of the local priorities of
that body (especially where insolvency is only one
of the matters for which it has responsibility). It may
also prove difficult to ensure that the decisionmaking
body adheres to the established limit and to
provide appropriate consequences where there is
no compliance. The time period between application
and the decision to commence proceedings should
also reflect the type of proceeding applied for, the
application procedure and the consequences of
commencement in any particular regime. For
example, the extent to which notification of parties
in interest and information gathering must be
completed prior to commencement will vary
17
between regimes, requiring different periods of time.
For these reasons, it is desirable that an insolvency
law adopt a flexible approach that emphasizes the
advantages of quick decision-making and provides
guidance as to what is reasonable, but at the same
time also recognizes local constraints and priorities.
(d) Denial of an application to commence
proceedings
The preceding paragraphs refer to a number of
instances where it will be desirable, in those cases
where the court is required to make the
commencement decision, for the court to have the
power to deny the application for commencement,
either because of questions of improper use of the
insolvency law or for technical reasons relating to
satisfaction of the commencement standard. The
cases referred to include examples of both debtor
and creditor applications. Principal among the
grounds for denial of the application for technical
reasons might be those cases where the debtor is
found not to satisfy the commencement standard;
where the debt is subject to a legitimate dispute or
off-set in an amount equal to or greater than the
amount of the debt; where the proceedings will
serve no purpose because, for example, secured
debt exceeds the value of assets; and where the
debtor has insufficient assets to pay for the
insolvency administration and the law makes no
other provision for funding the administration of
such estates.
Examples of improper use might include those
cases where the debtor uses an application for
insolvency as a means of prevaricating and
unjustifiably depriving creditors of prompt payment
of debts or of obtaining relief from onerous
obligations, such as labour contracts. In the case of
a creditor application, it might include those cases
18
where a creditor uses insolvency as an
inappropriate substitute for debt enforcement
procedures (which may not be well developed); to
attempt to force a viable business out of the market
place; or to attempt to obtain preferential payments
by coercing the debtor (where such preferential
payments have been made and the debtor is
insolvent, investigation would be a key function of
insolvency proceedings).
As noted above, where there is evidence of
improper use of the insolvency proceedings by
either the debtor or creditors, the insolvency law
may provide, in addition to denial of the application,
that sanctions can be imposed on the party
improperly using the proceedings or that that party
should pay costs and possibly damages to the other
party for any harm caused. Remedies may also be
available under non-insolvency law. Where an
application is denied, any provisional measures of
relief ordered by the court after the time of the
application for commencement should terminate
(see chap. II, para. 53).”
(Emphasis supplied)
Ultimately, recommendation 19 of the Legislative Guide
reads as under:
“Commencement on creditor application (paras.57
and 67)
19. The law generally should specify that, where a
creditor makes the application for commencement:
(a) Notice of the application promptly is given to the
debtor;
(b) The debtor be given the opportunity to respond
to the application, by contesting the application,
19
consenting to the application or, where the
application seeks liquidation, requesting the
commencement of reorganization proceedings; and
(c) The court will promptly determine its jurisdiction
and whether the debtor is eligible and the
commencement standard has been met and, if so,
commence insolvency proceedings.1
”
11. The legislative history of legislation relating to
indebtedness goes back to the year 1964 when the 24th Law
Commission recommended amendments to the Provincial
Insolvency Act of 1920. This was followed by the Tiwari
Committee of 1981, which introduced the Sick Industrial
Companies Act, 1985. Following economic liberalization in the
1990s, two Narsimham Committee reports led to the Recovery
of Debts and Bankruptcy Act, 1993 and the SARFAESI Act,
2002. Meanwhile, the Goswami Committee Report, submitted
in 1993, condemned the liquidation procedure prescribed by the
Companies Act, 1956 as unworkable and being beset with
delays at all levels – delaying tactics employed by the
management, delays at the level of the Courts, delays in
1
A determination that the commencement standard has been met may involve consideration of
whether the debt is subject to a legitimate dispute or offset in an amount equal to or greater
than the amount of the debt. The existence of such a set-off may be a ground for dismissal of the
application (see above, paras. 61-63).
20
making auction sales etc. This then led to the Eradi Committee
Report of 1999, which proposed amendments to the
Companies Act and proposed the repeal of SICA. This
Committee echoed the findings of the Goswami Committee and
recommended an overhaul of the liquidation procedure under
the Companies Act.
12. It was for the first time, in 2001, that the L.N. Mitra
Committee of the RBI proposed a comprehensive Bankruptcy
Code. This was followed by the Irani Committee Report, also of
the RBI in 2005, which noted that the liquidation procedure in
India is costly, inordinately lengthy and results in almost
complete erosion of asset value. The Committee also noted
that the insolvency framework did not balance stakeholders’
interests adequately. It proposed a number of changes
including changes for increased protection of creditors’ rights,
maximization of asset value and better management of the
company in liquidation. In 2008, the Raghuram Rajan
Committee of the Planning Commission proposed improvement
to the credit infrastructure in the country, and finally a
21
Committee of Financial Sector Legislative Reforms in 2013
submitted a draft Indian Financial Code, which included a
“resolution corporation” for resolving distressed financial firms.
13. All this then led to the Bankruptcy Law Reforms
Committee, set up by the Department of Economic Affairs,
Ministry of Finance, under the Chairmanship of Shri T.K.
Viswanathan. This Committee submitted an interim report in
February 2015 and a final report in November of the same year.
It was, as a result of the deliberations of this Committee, that
the present Insolvency and Bankruptcy Code of 2016 was
finally born.
14. The interim report went into the existing law on
indebtedness in some detail and discussed the tests laid down
in Madhusudan Gordhandas v. Madhu Woollen Industries
Pvt. Ltd (1972) 2 SCR 201, by which a petition presented
under the Companies Act on the ground that the company is
“unable to pay its debts” can only be dismissed if the debt is
bona fide disputed, i.e. that the defense of the debtor is
genuine, substantial and is likely to succeed on a point of law.
22
The interim report also adverted to an amendment made in the
Companies Act, 2003, by which the threshold requirement of
Rs.500 was replaced by Rs.1 lakh.
15. The interim report found:
“Once the petitioning creditor has proved the
inability of the debtor company to pay debts, van
Zwieten states that courts in India have recognised
a wide discretion that enabled it to give time to the
debtor to make payment or even dismiss the
petition. This is in stark contrast with the position in
the UK (from where the law was transplanted)
where once the company’s inability to pay debts has
been proven, the petitioning creditor is ordinarily
held to be entitled to a winding up order (although it
should be noted that there is an alternative
corporate rescue procedure, ‘administration’, which
a debtor may be entitled to enter).
The effect of these abovementioned judicial
developments has been to add significant delays in
the liquidation process under CA 1956 and to add
uncertainty regarding the rights of the creditors in
the event of the company’s insolvency.
Consequently, this has made creditor recourse to
the liquidation procedure as a means of debt
enforcement rather difficult, and secondly, rendered
the liquidation procedure ineffective as a disciplinary
mechanism for creditors against insolvent debtors.”
The interim report then recommended:
“Recommendations:
• In order to re-instate the debt enforcement function
of the statutory demand test for winding up, if a
23
company fails to pay an undisputed debt of a
prescribed value as per Section 271(2) (a), the
creditor should be entitled to a winding up order
irrespective of whether it is insolvent (in commercial
or balance sheet terms) or not. Further, the NCLT
should have the discretion to refer the company for
rehabilitation under Chapter XIX before making a
winding up order on such ground, if the company
appears to be prima facie viable. Further, in order to
prevent abuse of the provision by creditors and
ensure that it is not used to force debtor companies
to settle disputed debts, the provision should specify
the factors that the NCLT may take into account to
determine whether the debt under consideration is
disputed or not. As laid down by the courts, a
petition may be dismissed if the debt in question is
bona fide disputed, i.e., where the following
conditions are satisfied: (i) the defence of the debtor
company is genuine, substantial and in good faith;
(ii) the defence is likely to succeed on a point of law;
and (iii) the debtor company adduces prima facie
proof of the facts on which the defence depends.
Further, as with initiation of rescue proceedings, the
NCLT should also have the power to impose
sanctions/costs/damages on a petitioning creditor
and disallow reapplications on the same grounds if
it finds that a petition has been filed to abuse the
process of law.
• The Government may also consider revising the
present value for triggering the statutory demand
test under Section 271 (2) (a) from ‘one lakh rupees’
to a higher amount or revise the provision to state
‘one lakh rupees or such amount as may be
prescribed’.
• ‘Balance sheet insolvency’ and ‘commercial
insolvency’ should be identified as separate
grounds indicating a company’s ‘inability to pay
24
debt’ in order to avoid conflicts/confusion with the
statutory demand test (as is the case of the IA 1986
where the statutory demand test, the commercial
insolvency test and the balance sheet insolvency
test are alternate grounds for determining a
company’s inability to pay debts under Sections
123(1) (a),123 (1) (e) and 123(2), respectively).”
16. By the final report dated November 2015, the
recommendation of the interim report was shelved. The
Committee made a distinction between financial contracts and
operational contracts. It stated:
“4.3.3 Information about the liabilities of a
solvent entity
Operational contracts typically involve an exchange
of goods and services for cash. For an enterprise,
the latter includes payables for purchase of rawmaterials,
other inputs or services, taxation and
statutory liabilities, and wages and benefits to
employees.
xxx xxx xxx
The Code specifies that if the Adjudicator is able to
locate the record of the liability and of default with
the registered IUs, a financial creditor needs no
other proof to establish that a default has taken
place.
xxx xxx xxx
The second set of liabilities are operational
liabilities, which are more difficult to centrally
capture given that the counterparties are a wide and
heterogeneous set. In the state of insolvency, the
record of all liabilities in the IUs become critical to
25
creditors in assessing the complexity of the
resolution required. Various private players,
including potential strategic acquirers or distressed
asset funds, would constantly monitor entities that
are facing stress, and prepare to make proposals to
the committee of creditors in the event that an
insolvency is triggered. Easy access to this
information is vital in ensuring that there is adequate
interest by various kinds of financial firms in coming
up to the committee of creditors with proposals. It is
not easy to set up mandates for the holders of
operational liabilities to file the records of their
liabilities, unlike the case of financial creditors.
However, their incentives to file liabilities are even
stronger when the entity approaches insolvency.
4.3.4 Information about operational creditors
Once the invoice or notice is served, the debtor
should be given a certain period of time in which to
respond either by disputing it in a court, or pay up
the amount of the invoice or notice. The debtor will
have the responsibility to file the information about
the court case, or the repayment record in response
to the invoice or notice within the specified amount
of time. If the debtor does not file either response
within the specified period, and the creditor files for
insolvency resolution, the debtor may be charged a
monetary penalty by the Adjudicator. However, if
the debtor disputes the claim in court, until the
outcome of this case is decided, the creditor may
not be able to trigger insolvency on the entity. This
process will act as a deterrent for frivolous claims
from creditors, as well as act as a barrier for some
types of creditors to initiate insolvency resolution.”
26
The Committee then went on to consider as to who can
trigger the insolvency process. In paragraph 5.2.1 the
Committee stated:
“Box 5.2 – Trigger for IRP
1. The IRP can be triggered by either the debtor or
the creditors by submitting documentation specified
in the Code to the adjudicating authority.
2. For the debtor to trigger the IRP, she must be
able to submit all the documentation that is defined
in the Code, and may be specified by the Regulator
above this.
3. The Code differentiates two categories of
creditors: financial creditors where the liability to the
debtor arises from a solely financial transaction, and
operational creditors where the liability to the debtor
arises in the form of future payments in exchange
for goods or services already delivered. In cases
where a creditor has both a solely financial
transaction as well as an operational transaction
with the entity, the creditor will be considered a
financial creditor to the extent of the financial debt
and an operational creditor to the extent of the
operational debt is more than half the full liability it
has with the debtor.
4. The Code will require different documentation for
a debtor, a financial creditor, and an operational
creditor to trigger the IRP. These are listed in Box
5.3 under what the Adjudicator will accept as
requirements to trigger the IRP.
5.2.1 Who can trigger the IRP?
Here, the Code differentiates between financial
creditors and operational creditors. Financial
27
creditors are those whose relationship with the
entity is a pure financial contract, such as a loan or
a debt security. Operational creditors are those
whose liability from the entity comes from a
transaction on operations. Thus, the wholesale
vendor of spare parts whose spark plugs are kept in
inventory by the car mechanic and who gets paid
only after the spark plugs are sold is an operational
creditor. Similarly, the lessor that the entity rents out
space from is an operational creditor to whom the
entity owes monthly rent on a three-year lease. The
Code also provides for cases where a creditor has
both a solely financial transaction as well as an
operational transaction with the entity. In such a
case, the creditor can be considered a financial
creditor to the extent of the financial debt and an
operational creditor to the extent of the operational
debt.
5.2.2 How can the IRP be triggered?
An application from a creditor must have a record of
the liability and evidence of the entity having
defaulted on payments. The Committee
recommends different documentation requirements
depending upon the type of creditor, either financial
or operational. A financial creditor must submit a
record of default by the entity as recorded in a
registered Information Utility (referred to as the IU)
as described in Section 4.3 (or on the basis of other
evidence). The default can be to any financial
creditor to the entity, and not restricted to the
creditor who triggers the IRP. The Code requires
that the financial creditor propose a registered
Insolvency Professional to manage the IRP.
Operational creditors must present an “undisputed
bill” which may be filed at a registered information
utility as requirement to trigger the IRP. The Code
does not require the operational creditor to propose
a registered Insolvency Professional to manage the
28
IRP. If a professional is not proposed by the
operational creditor, and the IRP is successfully
triggered, the Code requires the Adjudicator to
approach the Regulator for a registered Insolvency
Professional for the case.
When the Adjudicator receives the application, she
confirms the validity of the documents before the
case can be registered by confirming the
documentation in the information utility if applicable.
In case the debtor triggers the IRP, the list of
documentation provided by the debtor is checked
against the required list. The proposal for the RP is
forwarded to the Regulator for validation. If both the
documentation and the proposed RP checks out as
required within the time specified in regulations, the
Adjudicator registers the IRP.
In case the financial creditor triggers the IRP, the
Adjudicator verifies the default from the information
utility (if the default has been filed with an
information utility, it shall be incontrovertible
evidence of the existence of a default) or otherwise
confirms the existence of default through the
additional evidence adduced by the financial
creditor, and puts forward the proposal for the RP to
the Regulator for validation. In case the operational
creditor triggers the IRP, the Adjudicator verifies the
documentation. Simultaneously, the Adjudicator
requests the Regulator for an RP. If either step
cannot be verified, or the process verification
exceeds the specified amount of time, then the
Adjudicator rejects the application, with a reasoned
order for the rejection. The order rejecting the
application cannot be appealed against. Instead,
application has to be made afresh. Once the
documents are verified within a specified amount of
time, the Adjudicator will trigger the IRP and register
the IRP by issuing an order. The order will contain a
unique ID that will be issued for the case by which
29
all reports and records that are generated during the
IRP will be stored, and accessed.”
17. Annexed to this Committee Report is the Insolvency and
Bankruptcy Bill, 2015. Interestingly, Section 5(4) defined
“dispute” as:
“5. Definitions
In this Part, unless the context otherwise requires-
(4) “dispute” means a bona fide suit or arbitration
proceeding regarding (a) the existence or the amount of a
debt; (b) the quality of a good or service; or (c) the breach
of a representation or warranty;”
Sections 8 and 9 in the said Bill read as under:
“8. Insolvency resolution by operational creditor.
(1) An operational creditor shall, on the occurrence
of a default, deliver a demand notice or copy of an
invoice demanding payment of the amount involved
in the default to the corporate debtor in such form
as may be prescribed, through an information utility,
wherever applicable, or by registered post or courier
or by any electronic communication.
(2) The corporate debtor shall, within a period of ten
days of the receipt of the demand notice or copy of
the invoice mentioned in sub-section (1) bring to the
notice of the operational creditor –
(a) the existence of a dispute, if any,
and record of the pendency of the suit or
30
arbitration proceedings filed at least
sixty days prior to the receipt of such
invoice or notice in relation to such
dispute through an information utility or
by registered post or courier or by any
electronic communication;
(b) the repayment of unpaid operational
debt- (i) by sending an attested copy of
electronic transfer of the unpaid amount
from the bank account of the corporate
debtor; or (ii) by sending an attested
copy of proof that the operational
creditor having encashed a cheque
issued by the corporate debtor.
Explanation. – For the purpose of this section a
“demand notice” means a notice served by an
operational creditor to the corporate debtor
demanding repayment of the debt in respect of
which the default has occurred.
9. Application for initiation of corporate
insolvency resolution process by operational
creditor.
(1) After the expiry of the period of ten days from
the date of delivery of the invoice or notice
demanding payment under sub-section (1) of
section 8, if the operational creditor does not
receive payment from the corporate debtor or notice
of the dispute under sub-section (2) of section 8, the
operational creditor may file an application with the
Adjudicating Authority in the prescribed form for
initiating a corporate insolvency resolution process.
(2) The application under sub-section (1) shall be
filed in such form and manner and accompanied
with such fee as may be prescribed.
31
(3) The operational creditor shall, along with the
application furnish-
(a) the invoice demanding payment or
notice delivered by the operational
creditor to the corporate debtor;
(b) affidavit to the effect that there is no
notice given by the corporate debtor
relating to a dispute of the unpaid
operational debt;
(c) a confirmation from the financial
institutions maintaining accounts of the
operational creditor that there is no
payment of an unpaid operational debt
by the corporate debtor; and
(d) such other information or as may be
specified.
(4) The Adjudicating Authority shall, within two days
of the receipt of the application under sub-section
(2), admit the application and communicate such
decision to the operational creditor and the
corporate debtor if, -
(a) the application is complete;
(b) there is no repayment of the unpaid
operational debt;
(c) the invoice or notice for payment to
the corporate debtor has been delivered
by the operational creditor; and
(d) no notice of dispute has been
received by the operational creditor or
there is no record of dispute in the
information utility.
32
(5) The Adjudicating Authority shall reject the
application and communicate such decision to the
operational creditor and the corporate debtor if –
(a) the application made under this
section is incomplete;
(b) there has been repayment of the
unpaid operational debt;
(c) the creditor has not delivered the
invoice or notice for payment to the
corporate debtor; and
(d) notice of dispute has been received
by the operational creditor and there is
no record of dispute in the information
utility.
(6) Without prejudice to the conditions mentioned in
sub-section (3), an operational creditor initiating a
corporate insolvency resolution process under this
section, may also propose a resolution professional
to act as an interim resolution professional.
(7) The corporate insolvency resolution process
shall commence from the date of admission of the
application under sub-section (4) of this section.”
18. Meanwhile, the Insolvency and Bankruptcy Bill that was
annexed to the Bankruptcy Law Reforms Committee Report
underwent a further change before it was submitted to a Joint
Committee of the Lok Sabha. In this Bill, the definition of
“dispute” now read as follows:
33
“5. Definitions.
In this Part unless the context otherwise requires,-
(6) “dispute” includes a suit or arbitration
proceedings relating to—
(a) the existence or the amount of debt;
(b) the quality of goods or service; or
(c) the breach of a representation or warranty;”
Sections 8 and 9 read as follows:
“8. Insolvency resolution by operational creditor.
(1) An operational creditor may, on the occurrence
of a default, deliver a demand notice of unpaid
operational debt or copy of an invoice demanding
payment of the amount involved in the default to the
corporate debtor in such form as may be
prescribed, through an information utility, wherever
applicable, or by registered post or courier or by
such electronic mode of communication, as may be
specified.
(2) The corporate debtor shall, within a period of ten
days of the receipt of the demand notice or copy of
the invoice mentioned in sub-section (1), bring to
the notice of the operational creditor—
(a) the existence of a dispute, if any,
and record of the pendency of the suit or
arbitration proceedings filed prior to the
receipt of such notice or invoice in
relation to such dispute through an
information utility or by registered post
or courier or by such electronic mode of
communication as may be specified;
(b) the repayment of unpaid operational
debt—
34
(i) by sending an attested
copy of the record of
electronic transfer of the
unpaid amount from the
bank account of the
corporate debtor; or
(ii) by sending an attested
copy of record that the
operational creditor has
encashed a cheque issued
by the corporate debtor.
Explanation.— For the purposes of this section, a
“demand notice” means a notice served by an
operational creditor to the corporate debtor
demanding repayment of the operational debt in
respect of which the default has occurred.
9. Application for initiation of corporate
insolvency resolution process by operational
creditor.
(1) After the expiry of the period of ten days from
the date of delivery of the notice or invoice
demanding payment under sub-section (1) of
section 8, if the operational creditor does not
receive payment from the corporate debtor or notice
of the dispute under sub-section (2) of section 8, the
operational creditor may file an application before
the Adjudicating Authority for initiating a corporate
insolvency resolution process.
(2) The application under sub-section (1) shall be
filed in such form and manner and accompanied
with such fee as may be prescribed.
(3) The operational creditor shall, along with the
application furnish—
(a) a copy of the invoice demanding
payment or demand notice delivered by
35
the operational creditor to the corporate
debtor;
(b) an affidavit to the effect that there is
no notice given by the corporate debtor
relating to a dispute of the unpaid
operational debt;
(c) a copy of the certificate from the
financial institutions maintaining
accounts of the operational creditor
confirming that there is no payment of
an unpaid operational debt by the
corporate debtor; and
(d) such other information or as may be
specified.
(4) An operational creditor initiating a corporate
insolvency resolution process under this section,
may propose a resolution professional to act as an
interim resolution professional.
(5) The Adjudicating Authority shall, within fourteen
days of the receipt of the application under subsection
(2), by an order—
(i) admit the application and
communicate such decision to the
operational creditor and the corporate
debtor if,—
(a) the application made
under sub-section (2) is
complete;
(b) there is no repayment of
the unpaid operational debt;
(c) the invoice or notice for
payment to the corporate
36
debtor has been delivered
by the operational creditor;
(d) no notice of dispute has
been received by the
operational creditor or there
is no record of dispute in the
information utility; and
(e) there is no disciplinary
proceeding pending against
any resolution professional
proposed under sub-section
(4), if any.
(ii) reject the application and
communicate such decision to the
operational creditor and the corporate
debtor, if—
(a) the application made
under sub-section (2) is
incomplete;
(b) there has been
repayment of the unpaid
operational debt;
(c) the creditor has not
delivered the invoice or
notice for payment to the
corporate debtor;
(d) notice of dispute has
been received by the
operational creditor or there
is a record of dispute in the
information utility; or
(e) any disciplinary
proceeding is pending
37
against any proposed
resolution professional:
Provided that Adjudicating Authority,
prior to rejecting an application under
sub-clause (a) of clause (ii) of this subsection,
shall give a notice to the
applicant to rectify the defect in his
application within three days of the date
of receipt of such notice from the
Adjudicating Authority.
(6) The corporate insolvency resolution process
shall commence from the date of admission of the
application under sub-section (5).”
19. The notes on clauses annexed to the Bill are extremely
important and read as follows:
“Notes on Clauses
Clause 6 provides that where a corporate debtor
has defaulted in paying a debt that has become due
and payable but not repaid, the corporate
insolvency resolution process under Part II may be
initiated in respect of such corporate debtor by a
financial creditor, an operational creditor or the
corporate debtor itself.
Early recognition of financial distress is very
important for timely resolution of insolvency. A
default based test for entry into the insolvency
resolution process permits early intervention such
that insolvency resolution proceedings can be
initiated at an early stage when the corporate debtor
shows early signs of financial distress rather than at
the point where it would be difficult to revive it
38
effectively. It also provides a simple test to initiate
resolution process.
This clause permits any financial creditor to initiate
the corporate insolvency resolution process where
the corporate debtor has defaulted in paying a debt
that has become due and payable but not repaid.
Financial creditors are those creditors to whom a
financial debt (i.e., a debt where the creditor is
compensated for the time value of the money lent)
is owed.
Further, the Code also permits the corporate debtor
itself to initiate the insolvency resolution process
once it has defaulted on a debt. Additionally,
operational creditors (i.e., creditors to whom a sum
of money is owed for the provision of goods or
services or the Central/State Government or local
authorities in respect of payments due to them) are
also permitted to initiate the insolvency resolution
process. This will bring the law in line with
international practices, which permit unsecured
creditors (including employees, suppliers etc. who
fall under the definition of operational creditors) to
file for the initiation of insolvency resolution
proceedings.
Clause 7 lays down the procedure for the initiation
of the corporate insolvency resolution process by a
financial creditor or two or more financial creditors
jointly. The financial creditor can file an application
before the National Company Law Tribunal along
with proof of default and the name of a resolution
professional proposed to act as the interim
resolution professional in respect of the corporate
debtor. The requirement to provide proof of default
ensures that financial creditors do not file frivolous
applications or applications which prematurely put
the corporate debtor into insolvency resolution
proceedings for extraneous considerations. The
39
adjudicating authority/ Tribunal can, within fourteen
days from the date of receipt of the application,
ascertain the existence of a default from the records
of a regulated information utility. A default may also
be proved in such manner as may be specified by
the Insolvency and Bankruptcy Board of India.
Once the adjudicating authority/Tribunal is satisfied
as to the existence of the default and has ensured
that the application is complete and no disciplinary
proceedings are pending against the proposed
resolution professional, it shall admit the application.
The adjudicating authority/Tribunal is not required to
look into any other criteria for admission of the
application. It is important that parties are not
allowed to abuse the legal process by using
delaying tactics at the admissions stage.
Clause 8 lays down the procedure for the initiation
of the corporate insolvency resolution process by an
operational creditor. This procedure differs from the
procedure applicable to financial creditors as
operational debts (such as trade debts, salary or
wage claims) tend to be small amounts (in
comparison to financial debts) or are recurring in
nature and may not be accurately reflected on the
records of information utilities at all times. The
possibility of disputed debts in relation to
operational creditors is also higher in comparison to
financial creditors such as banks and financial
institutions. Accordingly, the process for initiation of
the insolvency resolution process differs for an
operational creditor.
Once a default has occurred, the operational
creditor has to deliver a demand notice or a copy of
an invoice demanding payment of the debt in
default to the corporate debtor. The corporate
debtor has a period of ten days from the receipt of
the demand notice or invoice to inform the
40
operational creditor of the existence of a dispute
regarding the debt claim or of the repayment of the
debt. This ensures that operational creditors, whose
debt claims are usually smaller, are not able to put
the corporate debtor into the insolvency resolution
process prematurely or initiate the process for
extraneous considerations. It may also facilitate
informal negotiations between such creditors and
the corporate debtor, which may result in a
restructuring of the debt outside the formal
proceedings.
Clause 9 On the expiry of the period of ten days
from the date of receipt of the invoice or demand
notice under Clause 8, if the operational creditor
does not receive either the payment of the debt or a
notice of existence of dispute in relation to the debt
claim from the corporate debtor, he can file an
application with the adjudicating authority for
initiating the insolvency resolution process in
respect of such debtor. He also has to furnish proof
of default and proof of non-payment of the debt
along with an affidavit verifying that there has been
no notice regarding the existence of a dispute in
relation to the debt claim. Within fourteen days from
the receipt of the application, if the adjudicating
authority/Tribunal is satisfied as to (a) the existence
of a default, and (b) the other criteria laid down in
clause 9(5) being met, it shall admit the application.
The adjudicating authority/Tribunal is not required to
look into any other criteria for admission of the
application. It is important that parties are not
allowed to abuse the legal process by using
delaying tactics at the admissions stage.”
(Emphasis supplied)
41
20. The Joint Committee in April, 2016 made certain small
changes in the said Bill, by which the Committee stated:
“17. Mode of delivery of demand notice of
unpaid operational debt – Clause 8
The Committee find that clause 8(1) of the Code
provides that an operational creditor may, on the
occurrence of a default, deliver a demand notice of
unpaid operational debt or copy of an invoice
demanding payment of the amount involved in the
default to the corporate debtor in such form as may
be prescribed, through an information utility,
wherever applicable, or by registered post or
courier or by such electronic mode of
communication, as may be specified.
The Committee are of the view that the details of
the mode of delivery of demand notice can be
provided in the rules. The Committee, therefore,
decide to substitute words “in such form as may be
prescribed, through an information utility, wherever
applicable, or by registered post or courier or by
such electronic mode of communication, as may be
specified” as appearing in clause 8(1) with the
words “in such form and manner, as may be
prescribed”. Besides as a consequential
amendment words “through an information utility or
by registered post or courier or by such electronic
mode of communication as may be specified” as
appearing in clause 8(2) may also be omitted.”
The Committee also revised the time limits set out in various
sections of the Code from 2, 3 and 5 days to a longer uniform
period of 7 days.
42
21. The stage is now set for setting out the relevant
provisions of the Code insofar as operational creditors and their
corporate debtors are concerned.
“3. Definitions.
In this Code, unless the context otherwise
requires,—
xxx xxx xxx
(12) “default” means non-payment of debt when
whole or any part or instalment of the amount of
debt has become due and payable and is not repaid
by the debtor or the corporate debtor, as the case
may be;
5. Definitions.
In this Part, unless the context otherwise requires,—
(6) “dispute” includes a suit or arbitration
proceedings relating to—
(a) the existence of the amount of debt;
(b) the quality of goods or service; or
(c) the breach of a representation or warranty;
xxx xxx xxx
(20) “operational creditor” means a person to whom
an operational debt is owed and includes any
person to whom such debt has been legally
assigned or transferred;
(21) “operational debt” means a claim in respect of
the provision of goods or services including
employment or a debt in respect of the repayment
of dues arising under any law for the time being in
43
force and payable to the Central Government, any
State Government or any local authority;
8. Insolvency resolution by operational creditor.
(1) An operational creditor may, on the occurrence
of a default, deliver a demand notice of unpaid
operational debt or copy of an invoice demanding
payment of the amount involved in the default to the
corporate debtor in such form and manner as may
be prescribed.
(2) The corporate debtor shall, within a period of ten
days of the receipt of the demand notice or copy of
the invoice mentioned in sub-section (1) bring to the
notice of the operational creditor—
(a) existence of a dispute, if any, and
record of the pendency of the suit or
arbitration proceedings filed before the
receipt of such notice or invoice in
relation to such dispute;
(b) the repayment of unpaid operational
debt—
(i) by sending an attested
copy of the record of
electronic transfer of the
unpaid amount from the
bank account of the
corporate debtor; or
(ii) by sending an attested
copy of record that the
operational creditor has
encashed a cheque issued
by the corporate debtor.
Explanation.—For the purposes of this section, a
“demand notice” means a notice served by an
operational creditor to the corporate debtor
44
demanding repayment of the operational debt in
respect of which the default has occurred.
9. Application for initiation of corporate
insolvency resolution process by operational
creditor.
(1) After the expiry of the period of ten days from
the date of delivery of the notice or invoice
demanding payment under sub-section (1) of
section 8, if the operational creditor does not
receive payment from the corporate debtor or notice
of the dispute under sub-section (2) of section 8, the
operational creditor may file an application before
the Adjudicating Authority for initiating a corporate
insolvency resolution process.
(2) The application under sub-section (1) shall be
filed in such form and manner and accompanied
with such fee as may be prescribed.
(3) The operational creditor shall, along with the
application furnish—
(a) a copy of the invoice demanding
payment or demand notice delivered by
the operational creditor to the corporate
debtor;
(b) an affidavit to the effect that there is
no notice given by the corporate debtor
relating to a dispute of the unpaid
operational debt;
(c) a copy of the certificate from the
financial institutions maintaining
accounts of the operational creditor
confirming that there is no payment of
an unpaid operational debt by the
corporate debtor; and
45
(d) such other information as may be
specified.
(4) An operational creditor initiating a corporate
insolvency resolution process under this section,
may propose a resolution professional to act as an
interim resolution professional.
(5) The Adjudicating Authority shall, within fourteen
days of the receipt of the application under subsection
(2), by an order—
(i) admit the application and
communicate such decision to the
operational creditor and the corporate
debtor if,—
(a) the application made
under sub-section (2) is
complete;
(b) there is no repayment of
the unpaid operational debt;
(c) the invoice or notice for
payment to the corporate
debtor has been delivered
by the operational creditor;
(d) no notice of dispute has
been received by the
operational creditor or there
is no record of dispute in the
information utility; and
(e) there is no disciplinary
proceeding pending against
any resolution professional
proposed under sub-section
(4), if any.
46
(ii) reject the application and
communicate such decision to the
operational creditor and the corporate
debtor, if—
(a) the application made
under sub-section (2) is
incomplete;
(b) there has been
repayment of the unpaid
operational debt;
(c) the creditor has not
delivered the invoice or
notice for payment to the
corporate debtor;
(d) notice of dispute has
been received by the
operational creditor or there
is a record of dispute in the
information utility; or
(e) any disciplinary
proceeding is pending
against any proposed
resolution professional:
Provided that Adjudicating Authority,
shall before rejecting an application
under sub-clause (a) of clause (ii) give a
notice to the applicant to rectify the
defect in his application within seven
days of the date of receipt of such notice
from the Adjudicating Authority.
(6) The corporate insolvency resolution process
shall commence from the date of admission of the
application under sub-section (5) of this section.”
47
22. Together with Section 8(1), the Insolvency and
Bankruptcy (Application to Adjudicating Authority) Rules, 2016,
speak of demand notices by the operational creditor and
applications by the operational creditor in the following terms:
“5. Demand notice by operational creditor.
(1) An operational creditor shall deliver to the
corporate debtor, the following documents, namely.-
(a) a demand notice in Form 3; or
(b) a copy of an invoice attached with a notice in
Form 4.
(2) The demand notice or the copy of the invoice
demanding payment referred to in sub-section (2) of
section 8 of the Code, may be delivered to the
corporate debtor,
(a) at the registered office by hand,
registered post or speed post with
acknowledgement due; or
(b) by electronic mail service to a whole
time director or designated partner or
key managerial personnel, if any, of the
corporate debtor.
(3) A copy of demand notice or invoice demanding
payment served under this rule by an operational
creditor shall also be filed with an information utility,
if any.
6. Application by operational creditor.
(1) An operational creditor, shall make an
application for initiating the corporate insolvency
resolution process against a corporate debtor under
section 9 of the Code in Form 5, accompanied with
48
documents and records required therein and as
specified in the Insolvency and Bankruptcy Board of
India (Insolvency Resolution Process for Corporate
Persons) Regulations, 2016.
(2) The applicant under sub-rule (1) shall dispatch
forthwith, a copy of the application filed with the
Adjudicating Authority, by registered post or speed
post to the registered office of the corporate debtor.
FORM 3
(See clause (a) of sub-rule (1) of rule 5)
FORM OF DEMAND NOTICE / INVOICE
DEMANDING PAYMENT UNDER THE
INSOLVENCY AND BANKRUPTCY CODE, 2016
(Under rule 5 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016)
[Date]
To,
[Name and address of the registered office of the
corporate debtor]
From,
[Name and address of the registered office of the
operational creditor]
Subject: Demand notice/invoice demanding
payment in respect of unpaid operational debt
due from [corporate debtor] under the Code.
Madam/Sir,
1. This letter is a demand notice/invoice demanding
payment of an unpaid operational debt due from
[name of corporate debtor].
49
2. Please find particulars of the unpaid operational
debt below:
PARTICULARS OF
OPERATIONAL DEBT
1. TOTAL AMOUNT OF
DEBT, DETAILS OF
TRANSACTIONS ON
ACCOUNT OF WHICH
DEBT FELL DUE, AND
THE DATE FROM WHICH
SUCH DEBT FELL DUE
2. AMOUNT CLAIMED TO
BE IN DEFAULT AND THE
DATE ON WHICH THE
DEFAULT OCCURRED
(ATTACH THE
WORKINGS FOR
COMPUTATION OF
DEFAULT IN TABULAR
FORM)
3. PARTICULARS OF
SECURITY HELD, IF ANY,
THE DATE OF ITS
CREATION, ITS
ESTIMATED VALUE AS
PER THE CREDITOR.
ATTACH A COPY OF A
CERTIFICATE OF
REGISTRATION OF
CHARGE ISSUED BY THE
REGISTRAR OF
COMPANIES (IF THE
CORPORATE DEBTOR IS
A COMPANY)
4. DETAILS OF RETENTION
OF TITLE
ARRANGEMENTS (IF
ANY) IN RESPECT OF
50
3. If you dispute the existence or amount of unpaid
operational debt (in default) please provide the
undersigned, within ten days of the receipt of this
letter, of the pendency of the suit or arbitration
proceedings in relation to such dispute filed before
the receipt of this letter/notice.
4. If you believe that the debt has been repaid
before the receipt of this letter, please demonstrate
such repayment by sending to us, within ten days of
receipt of this letter, the following:
(a) an attested copy of the record of electronic
transfer of the unpaid amount from the bank
account of the corporate debtor; or
(b) an attested copy of any record that [name of the
operational creditor] has received the payment.
5. The undersigned, hereby, attaches a certificate
from an information utility confirming that no record
GOODS TO WHICH THE
OPERATIONAL DEBT
REFERS
5. RECORD OF DEFAULT
WITH THE INFORMATION
UTILITY (IF ANY)
6. PROVISION OF LAW,
CONTRACT OR OTHER
DOCUMENT UNDER
WHICH DEBT HAS
BECOME DUE
7. LIST OF DOCUMENTS
ATTACHED TO THIS
APPLICATION IN ORDER
TO PROVE THE
EXISTENCE OF
OPERATIONAL DEBT
AND THE AMOUNT IN
DEFAULT
51
of a dispute raised in relation to the relevant
operational debt has been filed by any person at
any information utility, (if applicable)
6. The undersigned request you to unconditionally
repay the unpaid operational debt (in default) in full
within ten days from the receipt of this letter failing
which we shall initiate a corporate insolvency
resolution process in respect of [c].
Yours sincerely,
Signature of person authorised to act on
behalf of the operational creditor
Name in block letters
Position with or in relation to the operational
creditor
Address of person signing
Instructions
1. Please serve a copy of this form on the corporate
debtor, ten days in advance of filing an application
under section 9 of the Code.
2. Please append a copy of such served notice to
the application made by the operational creditor to
the Adjudicating Authority.
Form 4
(See clause (b) of sub-rule (1) of rule 5)
FORM OF NOTICE WITH WHICH INVOICE
DEMANDING PAYMENT IS TO BE ATTACHED
(Under Rule 5 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016)
[Date]
52
To,
[Name and address of registered office of the
corporate debtor]
From,
[Name and address of the operational creditor]
Subject: Notice attached to invoice demanding
payment
Madam/Sir,
[Name of operational creditor], hereby provides
notice for repayment of the unpaid amount of INR
[insert amount] that is in default as reflected in the
invoice attached to this notice.
In the event you do not repay the debt due to us
within ten days of receipt of this notice, we may file
an application before the Adjudicating Authority for
initiating a corporate insolvency resolution process
under section 9 of the Code.
Yours sincerely,
Signature of person authorised to act on
behalf of the operational creditor
Name in block letters
Position with or in relation to the operational
creditor
Address of person signing
Form 5
(See sub-rule (1) of rule 6)
APPLICATION BY OPERATIONAL CREDITOR
TO INITIATE CORPORATE INSOLVENCY
RESOLUTION PROCESS UNDER THE CODE.
53
(Under rule 6 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016)
[Date]
To,
The National Company Law Tribunal
[Address]
From,
[Name and address for correspondence of the
operational creditor]
In the matter of [name of the corporate debtor]
Subject: Application to initiate corporate
insolvency resolution process in respect of
[name of the corporate debtor] under the
Insolvency and Bankruptcy Code, 2016.
Madam/Sir,
[Name of the operational creditor], hereby submits
this application to initiate a corporate insolvency
resolution process in the case of [name of corporate
debtor]. The details for the purpose of this
application are set out below:
Part – I
PARTICULARS OF APPLICANT
1. NAME OF OPERATIONAL
CREDITOR
2. IDENTIFICATION NUMBER OF
OPERATIONAL CREDITOR
(IF ANY)
3. ADDRESS FOR
CORRESPONDENCE OF THE
OPERATIONAL CREDITOR
54
Part - II
PARTICULARS OF
CORPORATE DEBTOR
1. NAME OF THE CORPORATE
DEBTOR
2. IDENTIFICATION NUMBER OF
CORPORATE DEBTOR
3. DATE OF INCORPORATION OF
CORPORATE DEBTOR
4. NOMINAL SHARE CAPITAL AND
THE PAID-UP SHARE CAPITAL
OF THE CORPORATE DEBTOR
AND/OR DETAILS OF
GUARANTEE CLAUSE AS PER
MEMORANDUM OF
ASSOCIATION (AS
APPLICABLE)
5. ADDRESS OF THE
REGISTERED OFFICE OF THE
CORPORATE DEBTOR
6. NAME, ADDRESS AND
AUTHORITY OF PERSON
SUBMITTING APPLICATION ON
BEHALF OF OPERATIONAL
CREDITOR (ENCLOSE
AUTHORISATION)
7. NAME AND ADDRESS OF
PERSON RESIDENT IN INDIA
AUTHORISED TO ACCEPT THE
SERVICE OF PROCESS ON ITS
BEHALF (ENCLOSE
AUTHORISATION)
Part-III
PARTICULARS OF THE
PROPOSED INTERIM
RESOLUTION
PROFESSIONAL [IF
PROPOSED]
55
1. NAME, ADDRESS, EMAIL
ADDRESS AND THE
REGISTRATION NUMBER OF
THE PROPOSED INSOLVENCY
PROFESSIONAL
Part-IV
PARTICULARS OF
OPERATIONAL DEBT
1. TOTAL AMOUNT OF DEBT,
DETAILS OF TRANSACTIONS
ON ACCOUNT OF WHICH
DEBT FELL DUE,
AND THE DATE FROM WHICH
SUCH DEBT FELL DUE
2. AMOUNT CLAIMED TO BE IN
DEFAULT AND THE DATE ON
WHICH THE DEFAULT
OCCURRED (ATTACH THE
WORKINGS FOR
COMPUTATION OF AMOUNT
AND DATES OF DEFAULT IN
TABULAR FORM)
Part-V
PARTICULARS OF OPERATIONAL DEBT
[DOCUMENTS, RECORDS AND EVIDENCE
OF DEFAULT]
1. PARTICULARS OF SECURITY HELD, IF
ANY, THE DATE OF ITS CREATION, ITS
ESTIMATED VALUE AS PER THE
CREDITOR.
ATTACH A COPY OF A CERTIFICATE OF
REGISTRATION OF CHARGE ISSUED BY
THE REGISTRAR OF COMPANIES (IF THE
CORPORATE DEBTOR IS A COMPANY)
2. DETAILS OF RESERVATION / RETENTION
OF TITLE ARRANGEMENTS (IF ANY) IN
RESPECT OF GOODS TO WHICH THE
56
OPERATIONAL DEBT REFERS
3. PARTICULARS OF AN ORDER OF A
COURT, TRIBUNAL OR ARBITRAL PANEL
ADJUDICATING ON THE DEFAULT, IF ANY
(ATTACH A COPY OF THE ORDER)
4. RECORD OF DEFAULT WITH THE
INFORMATION UTILITY, IF ANY
(ATTACH A COPY OF SUCH RECORD)
5. DETAILS OF SUCCESSION CERTIFICATE,
OR PROBATE OF A WILL, OR LETTER OF
ADMINISTRATION, OR COURT DECREE
(AS MAY BE APPLICABLE), UNDER THE
INDIAN SUCCESSION ACT, 1925 (10 OF
1925)
(ATTACH A COPY)
6. PROVISION OF LAW, CONTRACT OR
OTHER DOCUMENT UNDER WHICH
OPERATIONAL DEBT HAS BECOME DUE
7. A STATEMENT OF BANK ACCOUNT
WHERE DEPOSITS ARE MADE OR
CREDITS RECEIVED NORMALLY BY THE
OPERATIONAL CREDITOR IN RESPECT
OF THE DEBT OF THE CORPORATE
DEBTOR (ATTACH A COPY)
8. LIST OF OTHER DOCUMENTS ATTACHED
TO THIS APPLICATION IN ORDER TO
PROVE THE EXISTENCE OF
OPERATIONAL DEBT AND THE AMOUNT
IN DEFAULT
I, [Name of the operational creditor / person
authorised to act on behalf of the operational
creditor] hereby certify that, to the best of my
knowledge, [name of proposed insolvency
professional], is fully qualified and permitted to act
as an insolvency professional in accordance with
the Code and the rules and regulations made
thereunder. [WHERE APPLICABLE]
57
[Name of the operational creditor] has paid the
requisite fee for this application through [state
means of payment] on [date].
Yours sincerely,
Signature of person authorised to act on behalf of
the operational creditor
Name in block letters
Position with or in relation to the operational
creditor
Address of person signing
Instructions -
Please attach the following to this application:
Annex I Copy of the invoice / demand notice as
in Form 3 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016
served on the corporate debtor.
Annex II Copies of all documents referred to in
this application.
Annex III Copy of the relevant accounts from the
banks/financial institutions maintaining accounts of
the operational creditor confirming that there is no
payment of the relevant unpaid operational debt by
the operational debtor, if available.
Annex IV Affidavit in support of the application in
accordance with the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016.
Annex V Written communication by the proposed
interim resolution professional as set out in Form 2
of the Insolvency and Bankruptcy (Application to
58
Adjudicating Authority) Rules, 2016. [WHERE
APPLICABLE]
Annex VI Proof that the specified application fee
has been paid.
Note: Where workmen/employees are operational
creditors, the application may be made either in an
individual capacity or in a joint capacity by one of
them who is duly authorised for the purpose.
Regulation 7 of the Insolvency and Bankruptcy Board of India
(Insolvency Resolution Process for Corporate Persons)
Regulations, 2016 is also relevant and reads as under:
“7. Claims by operational creditors.-
(1) A person claiming to be an operational creditor,
other than workman or employee of the corporate
debtor, shall submit proof of claim to the interim
resolution professional in person, by post or by
electronic means in Form B of the Schedule:
Provided that such person may submit
supplementary documents or clarifications in
support of the claim before the constitution of the
committee.
(2) The existence of debt due to the operational
creditor under this Regulation may be proved on
the basis of-
(a) the records available with an
information utility, if any; or
(b) other relevant documents, including
–
59
(i) a contract for the supply
of goods and services with
corporate debtor;
(ii) an invoice demanding
payment for the goods and
services supplied to the
corporate debtor;
(iii) an order of a court or
tribunal that has adjudicated
upon the non-payment of a
debt, if any; or
(iv) financial accounts.
FORM B
PROOF OF CLAIM BY OPERATIONAL
CREDITORS EXCEPT WORKMEN AND
EMPLOYEES
[Under Regulation 7 of the Insolvency and
Bankruptcy Board of India (Insolvency Resolution
Process for Corporate Persons) Regulations, 2016]
[Date]
To
The Interim Resolution Professional / Resolution
Professional
[Name of the Insolvency Resolution Professional /
Resolution Professional]
[Address as set out in public announcement]
From
[Name and address of the operational creditor]
Subject: Submission of proof of claim.
Madam/Sir,
60
[Name of the operational creditor], hereby submits
this proof of claim in respect of the corporate
insolvency resolution process in the case of [name
of corporate debtor]. The details for the same are
set out below:
PARTICULARS
1. NAME OF OPERATIONAL
CREDITOR
2. IDENTIFICATION NUMBER
OF OPERATIONAL
CREDITOR
(IF AN INCORPORATED
BODY PROVIDE
IDENTIFICATION NUMBER
AND PROOF OF
INCORPORATION. IF A
PARTNERSHIP OR
INDIVIDUAL PROVIDE
IDENTIFICATION RECORDS*
OF ALL THE PARTNERS OR
THE INDIVIDUAL)
3. ADDRESS AND EMAIL
ADDRESS OF OPERATIONAL
CREDITOR FOR
CORRESPONDENCE
4. TOTAL AMOUNT OF CLAIM
(INCLUDING ANY INTEREST
AS AT THE INSOLVENCY
COMMENCEMENT DATE)
5. DETAILS OF DOCUMENTS
BY REFERENCE TO WHICH
THE DEBT CAN BE
SUBSTANTIATED.
6. DETAILS OF ANY DISPUTE
AS WELL AS THE RECORD
OF PENDENCY OR ORDER
61
OF SUIT OR ARBITRATION
PROCEEDINGS
7. DETAILS OF HOW AND
WHEN DEBT INCURRED
8. DETAILS OF ANY MUTUAL
CREDIT, MUTUAL DEBTS, OR
OTHER MUTUAL DEALINGS
BETWEEN THE CORPORATE
DEBTOR AND THE
CREDITOR WHICH MAY BE
SET-OFF AGAINST THE
CLAIM
9. DETAILS OF ANY
RETENTION OF TITLE
ARRANGEMENTS IN
RESPECT OF GOODS OR
PROPERTIES TO WHICH THE
CLAIM REFERS
10. DETAILS OF THE BANK
ACCOUNT TO WHICH THE
AMOUNT OF THE CLAIM OR
ANY PART THEREOF CAN BE
TRANSFERRED PURSUANT
TO A RESOLUTION PLAN
11. LIST OF DOCUMENTS
ATTACHED TO THIS PROOF
OF CLAIM IN ORDER TO
PROVE THE EXISTENCE AND
NONPAYMENT OF CLAIM
DUE TO THE OPERATIONAL
CREDITOR
Signature of operational creditor or person
authorised to act on his behalf
[Please enclose the authority if this is being
submitted on behalf of an operational creditor]
Name in BLOCK LETTERS
Position with or in relation to creditor
Address of person signing
62
*PAN number, passport, AADHAAR Card or the
identity card issued by the Election Commission of
India.”
(Emphasis supplied)
23. In the passage of the Bills which ultimately became the
Code, various important changes have taken place. The
original definition of “dispute” has now become an inclusive
definition, the word “bona fide” before “suit or arbitration
proceedings” being deleted. In Section 8(1), the words “through
an information utility, wherever applicable, or by registered post
or courier or by any electronic communication” have been
deleted. Likewise, in Section 8(2), the period of “at least 60
days … through an information utility or by registered post or
courier or by any electronic communication” has also been
deleted. In Section 9(5), the absence of a proviso similar to the
proviso occurring in Section 7(5) was also rectified. Further,
the time periods of 2 and 3 days were uniformly substituted, as
has been seen above, by 7 days, so that a sufficiently long
period is given to do the needful.
63
24. The scheme under Sections 8 and 9 of the Code, appears
to be that an operational creditor, as defined, may, on the
occurrence of a default (i.e., on non-payment of a debt, any part
whereof has become due and payable and has not been
repaid), deliver a demand notice of such unpaid operational
debt or deliver the copy of an invoice demanding payment of
such amount to the corporate debtor in the form set out in Rule
5 of the Insolvency and Bankruptcy (Application to Adjudicating
Authority) Rules, 2016 read with Form 3 or 4, as the case may
be (Section 8(1)). Within a period of 10 days of the receipt of
such demand notice or copy of invoice, the corporate debtor
must bring to the notice of the operational creditor the existence
of a dispute and/or the record of the pendency of a suit or
arbitration proceeding filed before the receipt of such notice or
invoice in relation to such dispute (Section 8(2)(a)). What is
important is that the existence of the dispute and/or the suit or
arbitration proceeding must be pre-existing – i.e. it must exist
before the receipt of the demand notice or invoice, as the case
may be. In case the unpaid operational debt has been repaid,
the corporate debtor shall within a period of the self-same 10
64
days send an attested copy of the record of the electronic
transfer of the unpaid amount from the bank account of the
corporate debtor or send an attested copy of the record that the
operational creditor has encashed a cheque or otherwise
received payment from the corporate debtor (Section 8(2)(b)). It
is only if, after the expiry of the period of the said 10 days, the
operational creditor does not either receive payment from the
corporate debtor or notice of dispute, that the operational
creditor may trigger the insolvency process by filing an
application before the adjudicating authority under Sections
9(1) and 9(2). This application is to be filed under Rule 6 of the
Insolvency and Bankruptcy (Application to Adjudicating
Authority) Rules, 2016 in Form 5, accompanied with documents
and records that are required under the said form. Under Rule
6(2), the applicant is to dispatch by registered post or speed
post, a copy of the application to the registered office of the
corporate debtor. Under Section 9(3), along with the
application, the statutory requirement is to furnish a copy of the
invoice or demand notice, an affidavit to the effect that there is
no notice given by the corporate debtor relating to a dispute of
65
the unpaid operational debt and a copy of the certificate from
the financial institution maintaining accounts of the operational
creditor confirming that there is no payment of an unpaid
operational debt by the corporate debtor. Apart from this
information, the other information required under Form 5 is also
to be given. Once this is done, the adjudicating authority may
either admit the application or reject it. If the application made
under sub-section (2) is incomplete, the adjudicating authority,
under the proviso to sub-section 5, may give a notice to the
applicant to rectify defects within 7 days of the receipt of the
notice from the adjudicating authority to make the application
complete. Once this is done, and the adjudicating authority
finds that either there is no repayment of the unpaid operational
debt after the invoice (Section 9(5)(i)(b)) or the invoice or notice
of payment to the corporate debtor has been delivered by the
operational creditor (Section 9(5)(i)(c)), or that no notice of
dispute has been received by the operational creditor from the
corporate debtor or that there is no record of such dispute in the
information utility (Section 9(5)(i)(d)), or that there is no
disciplinary proceeding pending against any resolution
66
professional proposed by the operational creditor (Section
9(5)(i)(e)), it shall admit the application within 14 days of the
receipt of the application, after which the corporate insolvency
resolution process gets triggered. On the other hand, the
adjudicating authority shall, within 14 days of the receipt of an
application by the operational creditor, reject such application if
the application is incomplete and has not been completed
within the period of 7 days granted by the proviso (Section
9(5)(ii)(a)). It may also reject the application where there has
been repayment of the operational debt (Section 9(5)(ii)(b)), or
the creditor has not delivered the invoice or notice for payment
to the corporate debtor (Section 9(5)(ii)(c)). It may also reject
the application if the notice of dispute has been received by the
operational creditor or there is a record of dispute in the
information utility (Section 9(5)(ii)(d)). Section 9(5)(ii)(d) refers
to the notice of an existing dispute that has so been received,
as it must be read with Section 8(2)(a). Also, if any disciplinary
proceeding is pending against any proposed resolution
professional, the application may be rejected (Section
9(5)(ii)(e)).
67
25. Therefore, the adjudicating authority, when examining an
application under Section 9 of the Act will have to determine:
(i) Whether there is an “operational debt” as defined
exceeding Rs.1 lakh? (See Section 4 of the Act)
(ii) Whether the documentary evidence furnished with the
application shows that the aforesaid debt is due and
payable and has not yet been paid? and
(iii) Whether there is existence of a dispute between the
parties or the record of the pendency of a suit or
arbitration proceeding filed before the receipt of the
demand notice of the unpaid operational debt in relation
to such dispute?
If any one of the aforesaid conditions is lacking, the
application would have to be rejected.
Apart from the above, the adjudicating authority must
follow the mandate of Section 9, as outlined above, and in
particular the mandate of Section 9(5) of the Act, and admit or
68
reject the application, as the case may be, depending upon the
factors mentioned in Section 9(5) of the Act.
26. Another thing of importance is the timelines within which
the insolvency resolution process is to be triggered. The
corporate debtor is given 10 days from the date of receipt of
demand notice or copy of invoice to either point out that a
dispute exists between the parties or that he has since repaid
the unpaid operational debt. If neither exists, then an
application once filed has to be disposed of by the adjudicating
authority within 14 days of its receipt, either by admitting it or
rejecting it. An appeal can then be filed to the Appellate
Tribunal under Section 61 of the Act within 30 days of the order
of the Adjudicating Authority with an extension of 15 further
days and no more.
27. Section 64 of the Code mandates that where these
timelines are not adhered to, either by the Tribunal or by the
Appellate Tribunal, they shall record reasons for not doing so
within the period so specified and extend the period so
specified for another period not exceeding 10 days. Even in
69
appeals to the Supreme Court from the Appellate Tribunal
under Section 62, 45 days time is given from the date of receipt
of the order of the Appellate Tribunal in which an appeal to the
Supreme Court is to be made, with a further grace period not
exceeding 15 days. The strict adherence of these timelines is
of essence to both the triggering process and the insolvency
resolution process. As we have seen, one of the principal
reasons why the Code was enacted was because liquidation
proceedings went on interminably, thereby damaging the
interests of all stakeholders, except a recalcitrant management
which would continue to hold on to the company without paying
its debts. Both the Tribunal and the Appellate Tribunal will do
well to keep in mind this principal objective sought to be
achieved by the Code and will strictly adhere to the time frame
within which they are to decide matters under the Code.
28. It is now important to construe Section 8 of the Code.
The operational creditors are those creditors to whom an
operational debt is owed, and an operational debt, in turn,
means a claim in respect of the provision of goods or services,
70
including employment, or a debt in respect of repayment of
dues arising under any law for the time being in force and
payable to the Government or to a local authority. This has to
be contrasted with financial debts that may be owed to financial
creditors, which was the subject matter of the judgment
delivered by this Court on 31.8.2017 in Innoventive Industries
Ltd. v. ICICI Bank & Anr. (Civil Appeal Nos.8337-8338 of
2017). In this judgment, we had held that the adjudicating
authority under Section 7 of the Code has to ascertain the
existence of a default from the records of the information utility
or on the basis of evidence furnished by the financial creditor
within 14 days. The corporate debtor is entitled to point out to
the adjudicating authority that a default has not occurred; in the
sense that a debt, which may also include a disputed claim, is
not due i.e. it is not payable in law or in fact. This Court then
went on to state:
“29. The scheme of Section 7 stands in contrast
with the scheme under Section 8 where an
operational creditor is, on the occurrence of a
default, to first deliver a demand notice of the
unpaid debt to the operational debtor in the manner
provided in Section 8(1) of the Code. Under
71
Section 8(2), the corporate debtor can, within a
period of 10 days of receipt of the demand notice or
copy of the invoice mentioned in sub-section (1),
bring to the notice of the operational creditor the
existence of a dispute or the record of the pendency
of a suit or arbitration proceedings, which is preexisting
– i.e. before such notice or invoice was
received by the corporate debtor. The moment
there is existence of such a dispute, the operational
creditor gets out of the clutches of the Code.
30. On the other hand, as we have seen, in the
case of a corporate debtor who commits a default of
a financial debt, the adjudicating authority has
merely to see the records of the information utility or
other evidence produced by the financial creditor to
satisfy itself that a default has occurred. It is of no
matter that the debt is disputed so long as the debt
is “due” i.e. payable unless interdicted by some law
or has not yet become due in the sense that it is
payable at some future date. It is only when this is
proved to the satisfaction of the adjudicating
authority that the adjudicating authority may reject
an application and not otherwise.”
29. It is, thus, clear that so far as an operational creditor is
concerned, a demand notice of an unpaid operational debt or
copy of an invoice demanding payment of the amount involved
must be delivered in the prescribed form. The corporate debtor
is then given a period of 10 days from the receipt of the
demand notice or copy of the invoice to bring to the notice of
the operational creditor the existence of a dispute, if any. We
72
have also seen the notes on clauses annexed to the Insolvency
and Bankruptcy Bill of 2015, in which “the existence of a
dispute” alone is mentioned. Even otherwise, the word “and”
occurring in Section 8(2)(a) must be read as “or” keeping in
mind the legislative intent and the fact that an anomalous
situation would arise if it is not read as “or”. If read as “and”,
disputes would only stave off the bankruptcy process if they are
already pending in a suit or arbitration proceedings and not
otherwise. This would lead to great hardship; in that a dispute
may arise a few days before triggering of the insolvency
process, in which case, though a dispute may exist, there is no
time to approach either an arbitral tribunal or a court. Further,
given the fact that long limitation periods are allowed, where
disputes may arise and do not reach an arbitral tribunal or a
court for upto three years, such persons would be outside the
purview of Section 8(2) leading to bankruptcy proceedings
commencing against them. Such an anomaly cannot possibly
have been intended by the legislature nor has it so been
intended. We have also seen that one of the objects of the
Code qua operational debts is to ensure that the amount of
73
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 is for this
reason that it is enough that a dispute exists between the
parties.
30. It is settled law that the expression “and” may be read as
“or” in order to further the object of the statute and/or to avoid
an anomalous situation. Thus, in Samee Khan v. Bindu Khan
(1998) 7 SCC 59 at 64, this Court held:
“14. Since the word “also” can have meanings such
as “as well” or “likewise”, cannot those meanings be
used for understanding the scope of the trio words
“and may also”? Those words cannot altogether be
detached from the other words in the sub-rule. Here
again the word “and” need not necessarily be
understood as denoting a conjunctive sense.
In Stroud’s Judicial Dictionary, it is stated that the
word “and” has generally a cumulative sense, but
sometimes it is by force of a context read as “or”.
Maxwell on Interpretation of Statutes has
recognised the above use to carry out the
interpretation of the legislature. This has been
approved by this Court in Ishwar Singh
Bindra v. State of U.P. [AIR 1968 SC 1450 : 1969
Cri LJ 19]. The principle of noscitur a sociis can
profitably be used to construct the words “and may
also” in the sub-rule.”
74
31. In Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd.
(2008) 4 SCC 755 at 765, this Court held:
“26. It may be noted that Section 86(1)(f) of the Act
of 2003 is a special provision for adjudication of
disputes between the licensee and the generating
companies. Such disputes can be adjudicated upon
either by the State Commission or the person or
persons to whom it is referred for arbitration. In our
opinion the word “and” in Section 86(1)(f) between
the words “generating companies” and “to refer any
dispute for arbitration” means “or”. It is well settled
that sometimes “and” can mean “or” and sometimes
“or” can mean “and” (vide G.P. Singh’s Principles of
Statutory Interpretation, 9th Edn., 2004, p. 404).
27. In our opinion in Section 86(1)(f) of the
Electricity Act, 2003 the word “and” between the
words “generating companies” and the words “refer
any dispute” means “or”, otherwise it will lead to an
anomalous situation because obviously the State
Commission cannot both decide a dispute itself and
also refer it to some arbitrator. Hence the word
“and” in Section 86(1)(f) means “or”.”
32. In a recent judgment in Maharishi Mahesh Yogi Vedic
Vishwavidyalaya v. State of M.P. (2013) 15 SCC 677 at 718,
this Court held:
“93. Besides the above two decisions, which
discuss about the methodology of interpretation of a
statute, we also refer to the following decisions
75
rendered by this Court in Ishwar Singh
Bindra [Ishwar Singh Bindra v. State of U.P., AIR
1968 SC 1450 : 1969 Cri LJ 19], wherein in para 11
it has been held as under: (AIR p. 1454)
“11. … It would be much more
appropriate in the context to read it
disconjunctively. In Stroud’s Judicial
Dictionary, 3rd Edn., it is stated at p.
135 that ‘and’ has generally a
cumulative sense, requiring the
fulfilment of all the conditions that it joins
together, and herein it is the antithesis
of or. Sometimes, however, even in
such a connection, it is, by force of a
context, read as ‘or’. Similarly in
Maxwell on Interpretation of Statutes,
11th Edn., it has been accepted that ‘to
carry out the intention of the legislature
it is occasionally found necessary to
read the conjunctions “or” and “and” one
for the other’.”
94. We may also refer to para 4 of the decision
rendered by this Court in Director of Mines
Safety v. Tandur and Nayandgi Stone Quarries (P)
Ltd. [(1987) 3 SCC 208] : (SCC p. 211, para 4)
“4. According to the plain meaning, the
exclusionary clause in sub-section (1) of
Section 3 of the Act read with the two
provisos beneath clauses (a) and (b),
the word ‘and’ at the end of para (b) of
sub-clause (ii) of the proviso to clause
(a) of Section 3(1) must in the context in
which it appears, be construed as ‘or’;
and if so construed, the existence of any
one of the three conditions stipulated in
paras (a), (b) and (c) would at once
76
attract the proviso to clauses (a) and (b)
of sub-section (1) of Section 3 and
thereby make the mine subject to the
provisions of the Act. The High Court
overlooked the fact that the use of the
negative language in each of the three
clauses implied that the word ‘and’ used
at the end of clause (b) had to be read
disjunctively. That construction of ours is
in keeping with the legislative intent
manifested by the scheme of the Act
which is primarily meant for ensuring the
safety of workmen employed in the
mines.”
33. This being the case, is it not open to the adjudicating
authority to then go into whether a dispute does or does not
exist?
34. It is important to notice that Section 255 read with the
Eleventh Schedule of the Code has amended Section 271 of
the Companies Act, 2013 so that a company being unable to
pay its debts is no longer a ground for winding up a company.
The old law contained in Madhusudan (supra) has, therefore,
disappeared with the disappearance of this ground in Section
271 of the Companies Act.
77
35. We have already noticed that in the first Insolvency and
Bankruptcy Bill, 2015 that was annexed to the Bankruptcy Law
Reforms Committee Report, Section 5(4) defined “dispute” as
meaning a “bona fide suit or arbitration proceedings…”. In its
present avatar, Section 5(6) excludes the expression “bona
fide” which is of significance. Therefore, it is difficult to import
the expression “bona fide” into Section 8(2)(a) in order to judge
whether a dispute exists or not.
36. The expression “existence” has been understood as
follows:
“The Shorter Oxford English Dictionary gives the
following meaning of the word “existence”:
a) Reality, as opp to appearance.
b) The fact or state of existing; actual possession
of being. Continued being as a living creature, life,
esp. under adverse conditions.
Something that exists; an entity, a being. All that
exists. (Page 894 – Oxford English Dictionary)”
37. Two extremely instructive judgments, one of the
Australian High Court, and the other of the Chancery Division in
the UK, throw a great deal of light on the expression “existence
78
of a dispute” contained in Section 8(2)(a) of the Code. The
Australian judgment is reported as Spencer
Constructions Pty Ltd v. G & M Aldridge Pty Ltd. [1997] FCA
681. The Australian High Court had to construe Section 459H
of the Corporations Law, which read as under:
“(1) .......
(a) that there is a genuine dispute between the
company and the respondent about the existence or
amount of a debt to which the demand relates;
(b) ........ ”
The expression “genuine dispute” was then held to mean
the following:
Finn J was content to adopt the explanation of
“genuine dispute” given by McLelland CJ in Eq
in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR
785 at 787 where his Honour said:
“In my opinion [the] expression connotes a plausible
contention requiring investigation, and raises much
the same sort of considerations as the ‘serious
question to be tried’ criterion which arises on an
application for an interlocutory injunction or for the
extension or removal of a caveat. This does not
mean that the court must accept uncritically as
giving rise to a genuine dispute, every statement in
an affidavit ‘however equivocal, lacking in precision,
inconsistent with undisputed contemporary
documents or other statements by the same
79
deponent, or inherently and probable in itself, it may
be not having ‘sufficient prima facie plausibility to
merit further investigation as to [its] truth’ (cf Eng
Mee Yong v Letchumanan [1980] AC 331 at 341), or
‘a patently feeble legal argument or an assertion of
facts unsupported by evidence’: cf South Australia v
Wall (1980) 24 SASR 189 at 194.”
His Honour also referred to the judgment of
Lindgren J in Rohala Pharmaceutical Pty Ltd (supra)
where, at 353, his Honour said:
“The provisions [of s 459H(1) and (5)] assume that
the dispute and offsetting claim have an ‘objective’
existence the genuineness of which is capable of
being assessed. The word ‘genuine’ is included [in
‘genuine dispute’] to sound a note of warning that
the propounding of serious disputes and claims is to
be expected but must be excluded from
consideration”.
There have been numerous decisions of single
judges in this Court and in State Supreme Courts
which have analysed, in different ways, the
approach a court should take in determining
whether there is “a genuine dispute” for the
purposes of s 459H of the Corporations Law. What
is clear is that in considering applications to set
aside a statutory demand, a court will not determine
contested issues of fact or law which have a
significant or substantial basis. One finds
formulations such as:
“... at least in most cases, it is not expected that the
court will embark upon any extended enquiry in
order to determine whether there is a genuine
dispute between the parties and certainly will not
attempt to weigh the merits of that dispute. All that
the legislation requires is that the court conclude
80
that there is a dispute and that it is a genuine
dispute”.
See Mibor Investments Pty Ltd v Commonwealth
Bank of Australia (1993) 11 ACSR 362 at 366-
7, followed by Ryan J in Moyall Investments
Services Pty Ltd v White (1993) 12 ACSR 320
at 324.
Another formulation has been expressed as follows:
“It is clear that what is required in all cases is
something between mere assertion and the proof
that would be necessary in a court of law.
Something more than mere assertion is required
because if that were not so then anyone could
merely say it did not owe a debt ...”
See John Holland Construction and Engineering Pty
Ltd v Kilpatrick Green Pty Ltd (1994) 12 ACLC 716
at 718, followed by Northrop J in Aquatown Pty Ltd
v Holder Stroud Pty Ltd (Federal Court of Australia,
25 June 1996, unreported).
In Re Morris Catering (Australia) Pty Ltd (1993) 11
ACSR 601 at 605, Thomas J said:
“There is little doubt that Div 3 is intended to be a
complete code which prescribes a formula that
requires the court to assess the position between
the parties, and preserve demands where it can be
seen that there is no genuine dispute and no
sufficient genuine offsetting claim. That is not to say
that the court will examine the merits or settle the
dispute. The specified limits of the court’s
examination are the ascertainment of whether there
is a ‘genuine dispute’ and whether there is a
‘genuine claim’.
It is often possible to discern the spurious, and to
identify mere bluster or assertion. But beyond a
perception of genuineness (or the lack of it) the
81
court has no function. It is not helpful to perceive
that one party is more likely than the other to
succeed, or that the eventual state of the account
between the parties is more likely to be one result
than another.
The essential task is relatively simple - to identify
the genuine level of a claim (not the likely result of
it) and to identify the genuine level of an offsetting
claim (not the likely result of it).”
In Scanhill Pty Ltd v Century 21 Australasia Pty
Ltd (1993) 12 ACSR 341 at 357 Beazley J said:
“... the test to be applied for the purposes
of s 459H is whether the court is satisfied that there
is a serious question to be tried that the applicant
has an offsetting claim”.
In Chadwick Industries (South Coast) Pty Ltd v
Condensing Vaporisers Pty Ltd (1994) 13 ACSR 37
at 39, Lockhart J said:
“... what appears clearly enough from all the
judgments is that a standard of satisfaction which a
court requires is not a particularly high one. I am for
present purposes content to adopt any of the
standards that are referred to in the cases ... The
highest of the thresholds is probably the test
enunciated by Beazley J, though for myself I discern
no inconsistency between that test and the
statements in the other cases to which I have
referred. However, the application of Beazley J’s
test will vary according to the circumstances of the
case.
Certainly the court will not examine the merits of the
dispute other than to see if there is in fact a genuine
dispute. The notion of a ‘genuine dispute’ in this
context suggests to me that the court must be
satisfied that there is a dispute that is not plainly
82
vexatious or frivolous. It must be satisfied that there
is a claim that may have some substance”.
In Greenwood Manor Pty Ltd v Woodlock (1994) 48
FCR 229 Northrop J referred to the formulations of
Thomas J in Re Morris Catering (Australia) Pty
Ltd (1993) 11 ACLC 919, 922 and Hayne J in Mibor
Investments Pty Ltd v Commonwealth Bank of
Australia (supra), where he noted the dictionary
definition of “genuine” as being in this context “not
spurious ... real or true” and concluded (at 234):
“Although it is true that the Court, on an application
under ss 459G and 459H is not entitled to decide a
question as to whether a claim will succeed or not, it
must be satisfied that there is a genuine dispute
between the company and the respondent about the
existence of the debt. If it can be shown that the
argument in support of the existence of a genuine
dispute can have no possible basis whatsoever, in
my view, it cannot be said that there is a genuine
dispute. This does not involve, in itself, a
determination of whether the claim will succeed or
not, but it does go to the reality of the dispute, to
show that it is real or true and not merely spurious”.
In our view a “genuine” dispute requires that:
• the dispute be bona fide and truly exist in fact;
• the grounds for alleging the existence of a
dispute are real and not spurious, hypothetical,
illusory or misconceived.
We consider that the various formulations referred
to above can be helpful in determining whether
there is a genuine dispute in a particular case,
so long as the formulation used does not become a
substitute for the words of the statute.”
83
38. To similar effect is the judgment of the Chancery Division
in Hayes v. Hayes (2014) EWHC 2694 (Ch) under the U.K.
Insolvency Rules. The Chancery Division held:
“I do not think it necessary, for the purposes of this
appeal, to embark on a survey of the authorities as
to precisely what is involved in a genuine and
substantial cross-claim. It is clear that on the one
hand, the court does not need to be satisfied that
there is a good claim or even that it is a claim which
is prima facie likely to succeed. In In re Bayoil
SA [1999] 1 WLR 147 itself, Nourse LJ referred, at p
153, to what Harman LJ had said in In re LHF
Wools Ltd [1970] Ch 27, 36 where Harman LJ,
having referred to a previous case, said:
“The majority decided in that case that,
shadowy as the cross-claim was and
improbable as the events said to
support it seemed to be, there was just
enough to make the principle work,
namely, that it was right to have the
matter tried out before the axe fell.”
On the other hand, the court should be alert to
detect wholly spurious claims merely being put
forward by an unwilling debtor to raise what has
been called “a cloud of objections” as I referred to
earlier.”
39. Interestingly enough in In Re: Portman Provincial
Cinemas Ltd. (1999) 1 WLR 157, a sharply divided Court of
Appeal had to decide whether a winding up petition should be
84
dismissed on the ground that a cross-claim had to be tried.
Lord Denning, the minority Judge put it thus:
“It comes to this: Mr. Hymanson has put forward a
most astonishing claim for an indemnity against
losses in perpetuity—based on an oral agreement
eight years ago—in a railway carriage or a solicitor’s
office—with nothing to support it at all: against a
man now dead. If there was substance in it fit for the
court to consider, he should have condescended to
a great deal more particularity. At all events, he
should have done so if he wished to convince me. I
do not think this cross-claim has any substance at
all. I would reject it as an answer to this creditor’s
debt and I would allow the appeal accordingly.”
On the other hand, Justice Harman in agreeing with the
Chancery Division judgment, held:
“I do not think that on this proceeding we are
entitled to adjudicate upon that matter. I do not think
we ought to reject out of hand statements on oath
by Mr. Hymanson and Mr. Waller which,
unsatisfactory as they may be, do yet set up
affirmatively this story. There is nobody, of course,
to contradict them. I think we must take it that there
is at least a chance that the judge will believe that
story and will agree that there was such a bargain
made, and, moreover, that it was an inherent part of
the sale agreement.
xxx xxx xxx
Therefore, I have had grave doubts about this
matter but I have come to the conclusion on the
85
whole that it cannot be said that the story was so
vague and the likelihood of success so slight that
we can say there was no substance in the crossclaim.
I think the judge was right to say that the
matter ought to go to trial, and therefore according
to the modern practice the petition should be
dismissed, and I would so hold.”
Similarly, Russell L.J. held:
“Lord Denning M.R. has taken the view that the
deponents of the company really have made up this
story, so strong are the circumstances which seem
to point in the opposite direction. As I have said, I
agree it is a most extraordinary story, but I am not
prepared, merely on the basis of affidavits and
circumstances appearing in the Companies Court,
to hold that really not only is their story strange, but
palpably untrue.”
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
86
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 above. So long as
a dispute truly exists in fact and is not spurious, hypothetical or
illusory, the adjudicating authority has to reject the application.
41. Coming to the facts of the present case, it is clear that the
argument of Shri Mohta that the requisite certificate by IDBI
was not given in time will have to be rejected, inasmuch as
neither the appellant nor the Tribunal raised any objection to
the application on this score. The confirmation from a financial
institution that there is no payment of an unpaid operational
debt by the corporate debtor is an important piece of
information that needs to be placed before the adjudicating
87
authority, under Section 9 of the Code, but given the fact that
the adjudicating authority has not dismissed the application on
this ground and that the appellant has raised this ground only at
the appellate stage, we are of the view that the application
cannot be dismissed at the threshold for want of this certificate
alone.
42. On the other hand, Shri Mohta is on firmer ground when
he argues that a dispute certainly exists on the facts of the
present case and that, therefore, the application ought to have
been dismissed on this ground.
43. According to learned counsel for the respondent, the
definition of “dispute” would indicate that since the NDA does
not fall within any of the three sub-clauses of Section 5(6), no
“dispute” is there on the facts of this case. We are afraid that
we cannot accede to such a contention. First and foremost, the
definition is an inclusive one, and we have seen that the word
“includes” substituted the word “means” which occurred in the
first Insolvency and Bankruptcy Bill. Secondly, the present is
not a case of a suit or arbitration proceeding filed before receipt
88
of notice – Section 5(6) only deals with suits or arbitration
proceedings which must “relate to” one of the three subclauses,
either directly or indirectly. We have seen that a
“dispute” is said to exist, so long as there is a real dispute as to
payment between the parties that would fall within the inclusive
definition contained in Section 5(6). The correspondence
between the parties would show that on 30th January, 2015, the
appellant clearly informed the respondent that they had
displayed the appellant’s confidential client information and
client campaign information on a public platform which
constituted a breach of trust and a breach of the NDA between
the parties. They were further told that all amounts that were
due to them were withheld till the time the matter is resolved.
On 10th February, 2015, the respondent referred to the NDA of
26th December, 2014 and denied that there was a breach of the
NDA. The respondent went on to state that the appellant’s
claim is unfounded and untenable, and that the appellant is
trying to avoid its financial obligations, and that a sum of
Rs.19,08,202.57 should be paid within one week, failing which
the respondent would be forced to explore legal options and
89
initiate legal process for recovery of the said amount. This email
was refuted by the appellant by an e-mail dated 26th
February, 2015 and the appellant went on to state that it had
lost business from various clients as a result of the
respondent’s breaches. Curiously, after this date, the
respondent remained silent, and thereafter, by an e-mail dated
20th June, 2016, the respondent wished to revive business
relations and stated that it would like to follow up for payments
which are long stuck up. This was followed by an e-mail dated
25th June, 2016 to finalize the time and place for a meeting. On
28th June, 2016, the appellant wrote to the respondent again to
finalize the time and place. Apparently, nothing came of the
aforesaid e-mails and the appellant then fired the last shot on
19th September, 2016, reiterating that no payments are due as
the NDA was breached.
44. The demand notice sent by the respondent was disputed
in detail by the appellant in its reply dated 27th December, 2016,
which set out the e-mail of 30th January, 2015. The appellant
then went on to state:
90
“Sometime during June and September 2016, an
officer of your Client, one Mr. Jasmeet Singh wrote
to our Client that he wanted to meet and revive
business relationship and exploring common
interest points to work together. In fact, in his email,
he admits that there should be resolution to the
impending payments thereby implying that there
was (a) a dispute (as defined under the Code) and
(b) there was a breach of the NDA which needed to
be resolved. Mr. Singh’s emails to our client were
sent after 1 year and 6 months had elapsed
from the date of our Client’s email of 30 January
2015. This clearly shows that your Client was silent
during this period and had not bothered to answer
the questions raised by our Client. Hence, once
again in September, our Client called upon your
Client to explain its breach of the NDA. Your Client
instead of explaining its breach of the NDA
remained silent for about 3 months and thereafter
chooses to issue the Notice as a form of pressure
tactic and extort monies from our Client for your
Client’s breach of the NDA. All the conduct of your
Client explicitly shows laches on its part.
Your Clients should note that under the NDA, it has
agreed that a breach of the NDA will cause
irreparable damage to our Client and our Client is
entitled to all remedies under law or equity against
your Client for the enforcement of the NDA.
Accordingly, given the severity of the breaches of
the NDA committed by your Client, the delay and
laches committed by your Client and the conduct of
your Client, our Client is not liable to make
payments to your Client against the breaches of the
NDA and the delay and laches committed by your
Client. In fact, at this stage, our Client is
contemplating initiating necessary legal actions
against your Client and its parent company for the
breach of the NDA to seek further compensations
91
and damages and other legal and equitable
remedies against your Client and its parent
company.”
45. Going by the aforesaid test of “existence of a dispute”, it
is clear that without going into the merits of the dispute, the
appellant has raised a plausible contention requiring further
investigation which is not a patently feeble legal argument or an
assertion of facts unsupported by evidence. The defense is not
spurious, mere bluster, plainly frivolous or vexatious. A dispute
does truly exist in fact between the parties, which may or may
not ultimately succeed, and the Appellate Tribunal was wholly
incorrect in characterizing the defense as vague, got-up and
motivated to evade liability.
46. Learned counsel for the respondent, however, argued
that the breach of the NDA is a claim for unliquidated damages
which does not become crystallized until legal proceedings are
filed, and none have been filed so far. The period of limitation
for filing such proceedings has admittedly not yet elapsed.
Further, the appellant has withheld amounts that were due to
the respondent under the NDA till the matter is resolved.
92
Admittedly, the matter has never been resolved. Also, the
respondent itself has not commenced any legal proceedings
after the e-mail dated 30th January, 2015 except for the present
insolvency application, which was filed almost 2 years after the
said e-mail. All these circumstances go to show that it is right to
have the matter tried out in the present case before the axe
falls.
47. We, therefore, allow the present appeal and set aside the
judgment of the Appellate Tribunal. There shall, however, be
no order as to costs.
…………………………......J.
(R.F. Nariman)
..……………………...........J.
(Sanjay Kishan Kaul)
New Delhi;
September 21, 2017.
