Petition U/S 9 Of IBC Cannot Be Entertained Based On Fabricated Invoices Created To Pursue Revenge Litigation Against Corporate Debtor: NCLAT

The National Company Law Appellate Tribunal (NCLAT) New Delhi bench of Justice Ashok Bhushan (Judicial Member) and Mr. Arun Baroka (Technical Member) has held that a Section 9 petition under the Insolvency and Bankruptcy Code, 2016 (Code) cannot be admitted when the operational creditor has used its control over the corporate debtor's affairs to fabricate invoices and drag the company into insolvency on account of personal or matrimonial disputes pending between the creditor's partners and the corporate debtor's director. Brief Facts: Om Sai Moulds & Plactics (Appellant/Operational Creditor), filed a petition under section 9 of the Code for the recovery of ₹1.27 crore (inclusive of interest) against Pllastomax Engineering Private Limited (Corporate Debtor) for goods supplied between 2021 and 2022. The goods, plastic injection moulds, were delivered with proper invoices and duly acknowledged delivery challans, with no disputes raised at the time of supply. Despite multiple reminders and a statutory Demand Notice, the Respondent failed to make payment. National Company Law Tribunal (NCLT) dismissed the Section 9 Petition, stating that the claim was driven by personal disputes between Mr. Nilesh Dahanukar (partner of the Appellant) and Mrs. Sheetal Dahanukar (director of the Respondent), including allegations of oppression and mismanagement by minority shareholders. The NCLT further imposed a cost of ₹10 lakh on the Appellant for filing a frivolous and vexatious Petition. Against the above order, the present appeal has been filed. Contentions: The Appellant submitted that the NCLT erred in dismissing the Section 9 Petition based on personal disputes, which do not qualify as a "dispute" under Section 5 (6) of the Code. The Code mandates that the dispute must relate to the existence of the debt, quality of goods, or breach of representation or warranty. The disputes raised by the Respondent were unrelated to these criteria. It was further submitted that the NCLT incorrectly lifted the corporate veil to consider personal disputes and minority shareholder conflicts, which are irrelevant to operational debt and default under the Code. It was also submitted that the pendency of dispute between the shareholders of Respondent Company and/or matrimonial dispute between one of the partners of the Appellant and director of Respondent Company, who happen to be husband and wife cannot be a ground for rejection of Section 9 Petition. Per contra, the Respondent submitted that issuing an e‑way bill does not prove that goods were actually delivered; such bills are generated by the petitioner itself. With access to back‑dated purchase orders and invoices, the petitioner could fabricate e‑way bills to bolster false claims. This suggests that the petitioner forged documents to pressure the deponent and impose an unwarranted financial burden on the respondent. It was further submitted that the petitioner's partner, Nilesh, appears to have fabricated this claim solely to harass his estranged wife, Mrs Sheetal Dahanukar, the respondent company's director, and to exact revenge amid their acrimonious divorce and related criminal and matrimonial proceedings which are now pending. It was further submitted that Respondent No. 2 alleges that the petitioner's partners, along with another director and one Gaurang, conspired to generate fake bills and misuse company documents, even using her digital signature without consent. She has filed a police complaint with the Kasarvadavli Police Station, Thane, on 01.06.2023. Observations: The Tribunal noted that the Respondent Company's registered email uses the petitioner firm's domain and the name of its partner, Mr Nilesh Dahanukar. This address appears on both companies' letterheads and is used for their official communications. It further added that the Respondent Company's registered office is Mr Dahanukar's personal residence. These facts show that Mr Dahanukar, who is also the Respondent Company's secretary, is closely involved in its management and capable of controlling its affairs. It further noted that all the purchase orders underpinning the petition are signed by Mrs Ashwini Ghodi or Mr Gaurang Ghodi; none bears the signature of the intervener, Mrs Sheetal Dahanukar. The Tribunal observed that the intervener claimed that these orders were issued after April 2021, when her dispute with Mr Nilesh Dahanukar escalated and she left the matrimonial home. These contested facts cast serious doubt on the genuineness of the petitioner's claim, and the intervener's objection therefore carries weight. The Tribunal also noted that Mr. Gaurang Ghodi, partner of Pan Products and the husband of Mrs. Ashwini Ghodi (Director of Respondent Company), are involved in the internal affairs of the Respondent Company. It further observed that the email of 03.01.2023, together with purchase...

Petition U/S 9 Of IBC Cannot Be Entertained Based On Fabricated Invoices Created To Pursue Revenge Litigation Against Corporate Debtor: NCLAT

Mohd Malik Chauhan

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