Under the Insolvency and Bankruptcy Code, 2016 (“Code”), an operational creditor can initiate a corporate insolvency resolution process (“CIRP”) of the corporate debtor by filing an application before the relevant National Company Law Tribunal (“NCLT/ Adjudicating Authority”) upon occurrence of a default in payment of its operational debt.
However, the operational creditor must first send a demand notice or invoice to the corporate debtor, demanding the payment of the defaulted debt. In case the corporate debtor issues a ‘notice of dispute’ to the operational creditor, the Adjudicating Authority is required to reject the application of the operational creditor.
Since the Code has been notified, one of key interpretational question that has arisen is the meaning of ‘dispute’ to constitute a valid notice of dispute to defeat the application of the operational creditor. The term ‘dispute’ has been defined in Section 5 (6) of the Code as “dispute includes a suit or arbitration proceedings relating to: (a) the existence of the amount of debt; (b) quality of goods or service; or (c) the breach of a representation or warranty”. On the other hand, Section 8 (2) of the Code provides that the debtor should bring to the notice of the operational creditor “existence of a dispute, if any, and record of suit or arbitration proceeding pending before receipt of the demand notice”.
The question that has arisen before various NCLTs is whether a corporate debtor can raise all kinds of disputes in the notice of dispute or can the notice of dispute only refer to pendency of a suit or arbitration before receipt of the demand notice. In other words, is the application of an operational creditor liable to be rejected only if the notice of dispute refers to a pending suit or arbitration proceeding on the dispute before receipt of the demand notice?
Very recently, in Kirusa Software Private Limited v. Mobilox Innovations Private Limited (Company Appeal (AT) (Insolvency) 6 of 2017, dated May 24, 2017), the National Company Law Appellate Tribunal (“NCLAT”) discussed this issue and passed an order, interpreting the meaning of ‘dispute’ under the Code (“NCLAT Order”). This article discusses some key observations made by NCLAT on interpretation of ‘dispute’.
facts of the case:
Kirusa Software Private Limited (“Kirusa”) issued a demand notice on Mobilox Innovations Private Limited (“Mobilox”) as an operational creditor, demanding payment of certain dues. Mobilox issued a reply to the demand notice (“Mobilox Reply”) inter alia stating that there exists serious and bona fide dispute between the parties and Kirusa had breached the terms of an NDA between the parties, divulged Mobilox’s confidential information and approached Mobilox’s clients.
Kirusa filed an application before the NCLT, Mumbai for initiation of CIRP of Mobilox which was dismissed by the NCLT, Mumbai on the grounds that a notice of dispute has been issued by Mobilox. Kirusa filed an appeal before the Hon’ble NCLAT, claiming that Mobilox Reply does not constitute a notice of dispute in accordance with the Code.
issue before the nclat:
What does “dispute” and “existence of dispute” mean for the purpose of determining the petition of the operational creditor under Section 9 of the Code?
On facts of the case, it was held that the Mobilox Reply does not raise any dispute within the meaning of Section 5 (6) or Section 8 (2), that Mobilox has disputed the payment merely on “some or other account” and that Mobilox’s defence was “vague, got up and motivated to evade the liability”. The NCLAT therefore set aside the order of NCLT, Mumbai and remitted the case to it for consideration of Kirusa’s application for admission, if the application is otherwise complete.
Rather than clarifying the meaning of the term ‘dispute’, the NCLAT Order raises more interpretational questions. On one hand, Hon’ble NCLAT has held that the definition of ‘dispute’ is inclusive and the term ‘dispute’ must be given a wide meaning, and further, disputes raised in the notice sent by the corporate debtor would get covered within Section 8 (2). On the other hand, the thrust of NCLAT Order is that the corporate debtor must have taken some action on the dispute under any Act or law before receipt of the demand notice. Therefore, it appears that while the Hon’ble NCLAT has extended the definition of dispute beyond suit or arbitration proceeding, it has still limited the same to some action/ proceeding taken by the corporate debtor under any Act or law in respect of the dispute, before receipt of the demand notice.
The NCLAT Order will have wide implications for corporate debtors as the NCLAT Order puts an onus on the corporate debtors to take some action on the dispute before receipt of the demand notice. Which leaves us with a question, what happens where the corporate debtor had no occasion to dispute the demand prior to receipt of the demand notice under the Code? For example, where the debtor only realized or discovered the poor quality of the goods supplied by the vendor after receiving his demand notice. Also, in commercial relationships, when there are running accounts between the parties, it may not be commercially prudent for a corporate debtor to take formal action on disputed invoices. Often, parties do not want to disturb existing relationships by initiating formal proceedings or taking actions such as issuing legal notices, and instead want to informally settle the matter by discussions etc.
Importantly, the onus to initiate action on disputed invoices has now shifted from the creditor to the debtor. Typically, it is the creditor who initiates legal actions to recover its dues. However, after the NCLAT Order, the corporate debtor may need to proactively take steps to dispute the invoices/dues of the operational creditor (that too before the operational creditor issues a formal demand notice under the Code).
Pooja Mahajan is a Partner in Chandhiok & Associates
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