Innovators Cleantech Private Limited Vs Pasari Multi Projects Private Limited (NCLAT Delhi)
NCLAT Delhi held that it is well settled proposition of law that for a pre-existing dispute to be a ground to nullify an application under Section 9 of the Insolvency and Bankruptcy Code. Accordingly, adjudicating authority rightly rejected application u/s. 9.
Facts- The present appeal filed under Section 61 of Insolvency and Bankruptcy Code 2016 by the Appellant arises out of the Order dated 28.08.2023 passed by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Court-II). By the impugned order, the Adjudicating Authority has rejected Section 9 application. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant.
Conclusion- The second demand notice was clearly a novated demand notice with particulars of debt and default and date of default being at variance from the first demand notice. Hence the Adjudicating Authority did not commit any infirmity in adjudicating on the pre-existence of disputes from the perspective of the date of the issue of the fresh second demand notice.
Held that it is also a well settled proposition of law that for a pre-existing dispute to be a ground to nullify an application under Section 9, the dispute raised must be truly existing at the time of filing a reply to notice of demand as contemplated by Section 8(2) of IBC or at the time of filing the Section 9 application. In the present case, the pre-existing dispute has been predicated on civil suit dated 16.04.2019. This civil suit was also highlighted in the Notice of dispute of the Corporate Debtor in response to the second demand notice. We have no doubts in our mind therefore that the civil suit had been filed prior to the issue of second Section 8 Demand Notice on 25.04.2019 and was a pre-existing dispute and therefore there is no infirmity committed by the Adjudicating Authority in treating the civil suit to be a pre-existing dispute.
