Cannot Initiate CIRP When a Pre-existing Dispute Exists: NCLAT

Introduction

In a judgment titled Akbar Travels of India Pvt. Ltd. v. Ritco Travels & Travels Pvt Ltd[i]*, *the National Company Law Appellate Tribunal (‘NCLAT’) held that corporate insolvency resolution process (‘CIRP’) proceedings under s. 9 of the Insolvency & Bankruptcy Code, 2016 (‘IBC’) cannot be initiated against a corporate debtor (‘CD’) when there is a pre-existing dispute between the parties.

Brief Facts

• M/s Ritco Travels & Tours Pvt Ltd (‘Respondent’) and M/s Akbar Travels of India Pvt Ltd (‘Appellant’) were recognized travel agencies engaged in the business of assisting the travelling and touring public.

• The Respondent received orders from a global corporate client for bulk booking of Sold Outside, Ticketed Outside (‘SOTO’) tickets on an urgent basis. Thereafter, the Respondent requested the Appellant to process the SOTO tickets for the client.

• The Appellant processed the sale of 87 SOTO tickets, aggregating to approx. Rs. 1.25 crores and raised invoices in the name of the Respondent. The payment for purchasing the aforementioned SOTO tickets was made through credit cards belonging to the corporate client, which the Respondent referred to the Appellant.

• The Respondent had on multiple occasions, prior to the Appellant making any payment for the SOTO tickets, assured him to undertake full responsibility for any debit note in case it would be issued against the aforementioned transactions.

• Subsequently, the Appellant received chargeback intimation from an airline and 37 Agency Debit Memos (‘ADMs’) were issued citing fraudulent transactions through credit cards.

• On communication of the ADMs being received, the Respondent requested the Appellant to dispute the ADMs. The Appellant raised the dispute. However, it was rejected by the airline, and thus, to prevent being blacklisted, the Appellant went ahead and paid the amount due as per the ADMs.

• The Appellant subsequently issued a demand notice under s. 8 of the IBC as an operational creditor.

• The Respondent raised allegations against the issuance of the demand notice, denying the amount payable, and also lodged police complaints against the ADMs which were issued.

• The Appellant filed a petition under s. 9 of IBC before the National Company Law Tribunal, Jaipur Bench (‘NCLT Jaipur’), which was rejected on the grounds of a pre-existing dispute between parties. Thus compelling the Appellant to approach the NCLAT.

Held

The NCLAT, while upholding the decision passed by NCLT Jaipur, made the following observations:

• The CIRP proceedings under s. 9 IBC cannot be initiated if there is a pre-existing dispute between the parties. However, the nature of the relationship existing between the Appellant and the Respondent was indeed that of an operational creditor and CD, as the Respondent had given multiple undertakings to fulfil the number of ADMs, which was, in fact, an acknowledgement of debt towards the Appellant.

• However, relying upon the judgement of the Hon’ble Supreme Court in Mobilox Innovations Private Limited v. Kirussa Software Private Limited[ii], NCLAT held that since there was a pre-existing dispute between the parties, ingredients under s. 9 of IBC are not fulfilled.

Our Analysis

This judgement exemplifies the guidelines laid down by the Hon’ble Supreme Court and observed that CIRP proceedings can only be initiated as per the provisions of s. 9 of IBC, which requires an applicant to prove the following: (a) the debt is due (b) it has not been paid, and (c) the debt is undisputed. Through this decision, the NCLAT emphasizes that not every dispute ought to be dealt with as per the provisions of the IBC, especially so when the same does not satisfy the aforementioned mandatory requirements provided for under s. 9 of the IBC,  and while other civil remedies exist and may be preferred.

End Note

[i] (2024) 162 taxmann.com 646 (NCLAT – Delhi)

[ii] (2018) 1 SCC 353

Authored by Aditya Gupta, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinion.