# KAY BOUVET ENGINEERING LTD v. OVERSEAS INFRASTRUCTURE ALLIANCE (INDIA) PRIVATE LIMITED

- **Citation:** [2021] 8 S.C.R. 109
- **Court:** Supreme Court of India
- **Decided:** 2021-08-10
- **Case number:** Civil Appeal No. 1137 of 2019
- **Bench:** R. F. Nariman, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kay-bouvet-engineering-ltd-v-overseas-infrastructure-alliance-india-private-35159
- **Pages:** 26

## Headnote

Insolvency and Bankruptcy Code, 2016: ss. 8 and 9 -
Corporate Insolvency Resolution Process - Application for initiation
of CIRP by operational creditor - Maintainability of - Held: When
a dispute truly exists in fact and is not spurious, hypothetical or
illusory; and if a notice has been received by "Operational Creditor",
the adjudicating authority rejects the application for initiation of
CIRP - It is required that the notice by the "Corporate Debtor"
must bring to the notice of "Operational Creditor" the existence of
a dispute or the fact that a suit or arbitration proceedings relating
to a dispute is pending between the parties - At this stage the
adjudicating authority is to see, 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 - However, the court is not required to go
into the merits of the case or be satisfied as to whether the defence
is likely to succeed or not - On facts, application u/s. 9 filed by
respondents, claiming to be Operational Creditor - NCLT rightly
rejected the application filed by respondents seeking initiation of
CIRP against the appellants after finding that there existed a dispute
between the appellant and the respondents and as such, an order
u/s. 9 would not have been passed - NCLAT patently misinterpreted
the factual as well as legal position and erred in reversing the order
of NCLT and directing admission of petition u/s. 9 of the Code -
Thus, the order passed by NCLAT is quashed and set aside.
Allowing the appeal, the Court
HELD: 1.1 Perusal of the ss. 8 and 9 of the Insolvency and
Bankruptcy Code, 2016 would reveal that an "Operational
Creditor", on the occurrence of default, is required to deliver a
"Demand Notice" of unpaid "Operational Debt" or a copy of
[2021] 8 S.C.R. 109
109
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invoice, demanding payment of amount involved in the default to
the "Corporate Debtor" in such form and manner as may be
prescribed. Within 10 days of the receipt of such "Demand Notice"
or copy of invoice, the "Corporate Debtor" is required to either
bring to the notice of the "Operational Creditor" "existence of a
dispute" or to make the payment of unpaid "Operational Debt"
in the manner as may be prescribed. Thereafter, as per the
provisions of Section 9 of the IBC, after the expiry of the period
of 10 days from the date of delivery of notice or invoice demanding
payment under sub-section (1) of Section 8 and if the "Operational
Creditor" does not receive payment from the "Corporate Debtor"
or notice of the dispute under sub-section (2) of Section 8 of the
IBC, the "Operational Creditor" is entitled to file an application
before the adjudicating authority for initiating the Corporate
Insolvency Resolution Process. [Para 13][120-B-E]
1.2 It is clear that once the "Operational Creditor" has
filed an application which is otherwise complete, the adjudicating
authority has to reject the application under Section 9(5)(ii)(d) of
IBC, if a notice has been received by "Operational Creditor" or
if there is a record of dispute in the information utility. What is
required is that the notice by the "Corporate Debtor" must bring
to the notice of "Operational Creditor" the existence of a dispute
or the fact that a suit or arbitration proceedings relating to a
dispute is pending between the parties. All that the adjudicating
authority is required 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 reject a
spurious defence which is a mere bluster. However, at this stage,
the Court is not required to be satisfied as to whether the defence
is likely to succeed or not. The Court also cannot go into the
merits of the dispute except to the extent indicated hereinab

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KAY BOUVET ENGINEERING LTD.
v.
OVERSEAS INFRASTRUCTURE ALLIANCE (INDIA)
PRIVATE LIMITED
(Civil Appeal No. 1137 of 2019)
AUGUST 10, 2021
[R. F. NARIMAN and B. R. GAVAI, JJ.]
Insolvency and Bankruptcy Code, 2016: ss. 8 and 9 -
Corporate Insolvency Resolution Process - Application for initiation
of CIRP by operational creditor - Maintainability of - Held: When
a dispute truly exists in fact and is not spurious, hypothetical or
illusory; and if a notice has been received by "Operational Creditor",
the adjudicating authority rejects the application for initiation of
CIRP - It is required that the notice by the "Corporate Debtor"
must bring to the notice of "Operational Creditor" the existence of
a dispute or the fact that a suit or arbitration proceedings relating
to a dispute is pending between the parties - At this stage the
adjudicating authority is to see, 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 - However, the court is not required to go
into the merits of the case or be satisfied as to whether the defence
is likely to succeed or not - On facts, application u/s. 9 filed by
respondents, claiming to be Operational Creditor - NCLT rightly
rejected the application filed by respondents seeking initiation of
CIRP against the appellants after finding that there existed a dispute
between the appellant and the respondents and as such, an order
u/s. 9 would not have been passed - NCLAT patently misinterpreted
the factual as well as legal position and erred in reversing the order
of NCLT and directing admission of petition u/s. 9 of the Code -
Thus, the order passed by NCLAT is quashed and set aside.
Allowing the appeal, the Court
HELD: 1.1 Perusal of the ss. 8 and 9 of the Insolvency and
Bankruptcy Code, 2016 would reveal that an "Operational
Creditor", on the occurrence of default, is required to deliver a
"Demand Notice" of unpaid "Operational Debt" or a copy of
[2021] 8 S.C.R. 109
109
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invoice, demanding payment of amount involved in the default to
the "Corporate Debtor" in such form and manner as may be
prescribed. Within 10 days of the receipt of such "Demand Notice"
or copy of invoice, the "Corporate Debtor" is required to either
bring to the notice of the "Operational Creditor" "existence of a
dispute" or to make the payment of unpaid "Operational Debt"
in the manner as may be prescribed. Thereafter, as per the
provisions of Section 9 of the IBC, after the expiry of the period
of 10 days from the date of delivery of notice or invoice demanding
payment under sub-section (1) of Section 8 and if the "Operational
Creditor" does not receive payment from the "Corporate Debtor"
or notice of the dispute under sub-section (2) of Section 8 of the
IBC, the "Operational Creditor" is entitled to file an application
before the adjudicating authority for initiating the Corporate
Insolvency Resolution Process. [Para 13][120-B-E]
1.2 It is clear that once the "Operational Creditor" has
filed an application which is otherwise complete, the adjudicating
authority has to reject the application under Section 9(5)(ii)(d) of
IBC, if a notice has been received by "Operational Creditor" or
if there is a record of dispute in the information utility. What is
required is that the notice by the "Corporate Debtor" must bring
to the notice of "Operational Creditor" the existence of a dispute
or the fact that a suit or arbitration proceedings relating to a
dispute is pending between the parties. All that the adjudicating
authority is required 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 reject a
spurious defence which is a mere bluster. However, at this stage,
the Court is not required to be satisfied as to whether the defence
is likely to succeed or not. The Court also cannot go into the
merits of the dispute except to the extent indicated hereinabove.
So long as a dispute truly exists in fact and is not spurious,
hypothetical or illusory, the adjudicating authority has no
other option but to reject the application. [Para 17][126-E-H;
127-A-B]
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1.3 It can be seen that the claim of the respondent Company
is that in the reply filed to its Notice of Motion by appellant
Company, it has admitted that M Company has, as a replacement
of Overseas, appointed appellant as the Contractor. As such, the
Tripartite Agreement dated 18th December 2010, stands vitiated
and superseded. As such, appellant cannot perform under the
said Tripartite Agreement. According to appellant, thus, in view
of the admission in the reply, appellant is liable to refund the
advance amount forthwith. [Para 20][128-C-E]
1.4 It can be seen that in reply addressed by appellant to
the respondents, the appellant has clearly stated that the said
amount of Rs.47,12,10,000/- was received as advance money on
behalf of M Company. It has been specifically stated that in the
agreement entered into between M Company and the appellant
on 5th July 2017, the said advance payment of
 has
been duly considered. It is stated that the execution of the fresh
contract in favour of appellant in no manner creates an automatic
liability on appellant. As such, appellant has pressed into service
the "existence of dispute" for opposing the demand made by
respondents. [Para 22][129-D-F]
1.5 A perusal thereof would clearly reveal that M Company
was to release payment of two invoices of respondent's for USD
10.5 Million (USD 9.00 Million + USD 1.50 Million). It would
further reveal that respondent was to release payment of USD
10.62 Million to appellant on submission of Advance Bank
Guarantee and Performance Bank Guarantee to M Company and
its confirmation and acceptance by M Company. [Para 25][130F-G]
1.6 It is abundantly clear that the case of appellant that the
amount of Rs.47,12,10,000/- which was paid to it by respondent's,
was paid on behalf of M Company from the funds released to
respondent by Exim Bank on behalf of M Company, cannot be
said to be a dispute which is spurious, illusory or not supported
by the evidence placed on record. The material placed on record
amply clarifies that the initial payment which was made to appellant
as a sub-Contractor by respondent who was a Contractor, was
made on behalf of M Company and from the funds received by
KAY BOUVET ENGINEERING LTD. v. OVERSEAS INFRASTRUCTURE
ALLIANCE (INDIA) PRIVATE LIMITED
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respondent from M Company. It will also be clear that when a
new contract was entered into between M Company and appellant
directly, M Company had directed the said amount of
Rs.47,12,10,000/- to be adjusted against the supplies to be made
to M Company for the purpose of completing the Project. On the
contrary, the documents clarified that the termination of the
contract with respondents would not absolve respondents of any
liability for the balance of the LoC 1st tranche of 25 Million
disbursed to them other than USD 10.62 paid to Kay Bouvet.
[Para 31][134-C-F]
1.7 In these circumstances, the NCLT had rightly rejected
the application of respondents after finding that there existed a
dispute between the appellant and the respondents and as such,
an order under Section 9 of the IBC would not have been passed.
NCLAT has patently misinterpreted the factual as well as legal
position and erred in reversing the order of NCLT and directing
admission of petition under Section 9 of the Code. [Para 32][134F-G]
Mobilox Innovations Private Limited v. Kirusa Software
Private Limited (2018) 1 SCC 353 : [2017] 10 SCR
1006 - relied on.
Case Law Reference
[2017] 10 SCR 1006
relied on
Paras 15, 16
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1137 of
2019.
From the Judgment and Order dated 21.12.2018 of the National
Company Law Appellate Tribunal at New Delhi in Company Appeal
(AT) (Insolvency) No. 582 of 2018.
Jayant Bhushan, Sr. Adv., Akshat Kumar, Ajay K. Jain, Atanu
Mukherjee, Yash Karan Jain, Advs. for the Appellant.
C.A. Sundaram, Sr. Adv., Amir Arsiwala, V. Siddharth, P. N. Puri,
Advs. for the Respondent.
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The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. This appeal challenges the judgment and order passed by the
National Company Law Appellate Tribunal (hereinafter referred to as
the "NCLAT") dated 21st December 2018, thereby allowing the appeal
filed by respondent herein. The respondent herein had preferred an
appeal being Company Appeal (AT) (Insolvency) No. 582 of 2018,
challenging the order passed by the National Company Law Tribunal
(hereinafter referred to as the "NCLT") dated 26th July 2018, thereby
rejecting the petition being C.P. (IB)-20(MB)/2018, filed by the respondent
herein under Section 9 of the Insolvency and Bankruptcy Code
(hereinafter referred to as the "IBC"). By the impugned order dated
21st December 2018, the NCLAT while allowing the appeal, has remitted
back the matter to the NCLT with a direction to admit the petition filed
by the respondent herein under Section 9 of the IBC after giving limited
notice to the appellant herein so as to enable it to settle the claim.
2. The facts in brief giving rise to the present appeal are as under:-
The Government of India extended Dollar Line of Credit
(hereinafter referred to as the "LoC") of USD 150 Million to the Republic
of Sudan through Exim Bank of India (hereinafter referred to as the
"Exim Bank") for carrying out Mashkour Sugar Project in Sudan. This
was in two tranches of USD 25 Million and USD 125 Million. On 26th
January 2009, the first tranche of USD 25 Million was executed between
Republic of Sudan and Exim Bank for financing the Mashkour Sugar
Project. On 11th October 2009, Mashkour Sugar Company Limited, Sudan
(hereinafter referred to as the "Mashkour") entered into an agreement
with the respondent-Overseas Infrastructure Alliance (India) Private
Limited (hereinafter referred to as the "Overseas") for USD 149,975,000
to be financed by Exim Bank. As per the said agreement, Mashkour
was to nominate a sub-contractor. A subsequent agreement was entered
into on 14th April 2010, between Mashkour and Overseas for payment
of USD 25 Million to Overseas towards "design and engineering package
and plant civil package including site mobilization". In response to the
invitation by Mashkour, the appellant-Kay Bouvet Engineering Limited
(hereinafter referred to as the "Kay Bouvet") submitted its bid as a subcontractor for supply, erection and completion of the Sugar Plant at Sudan,
which was accepted by Mashkour. On 18th December 2010, a
KAY BOUVET ENGINEERING LTD. v. OVERSEAS INFRASTRUCTURE
ALLIANCE (INDIA) PRIVATE LIMITED
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Memorandum of Understanding (hereinafter referred to as the "MoU")
was entered into between Mashkour, Overseas and Kay Bouvet at
Khartoum, Sudan. The said MoU provided that the contract has to be
governed by the laws of Sudan. The same MoU also defined roles and
responsibilities of each of the parties. On the same date, a Tripartite
Agreement was also executed between all the three parties vide which,
Kay Bouvet was appointed as a sub-contractor for executing the whole
work of designing, engineering, supply, installation, erection, testing and
completion of Factory Plant for Mashkour Sugar Company for an amount
of USD 106.200 Million.
3. On 29th March 2011, Overseas vide an e-mail sent to Mashkour
confirmed that under the Tripartite Agreement, Mashkour was to release
payment of first tranche of LoC to Overseas and the Overseas in turn
was to release payment of USD 10.62 Million to Kay Bouvet on
submission of Advance Bank Guarantee and Performance Bank
Guarantee by Kay Bouvet to Mashkour. Vide letter dated 21st April
2011, Exim Bank informed Overseas that an amount of Rs.46.58 Crore
had been remitted to its bank account. Overseas vide letter of the same
date confirmed to Mashkour about receipt of funds and further informed
that it will release USD 10.62 Million to Kay Bouvet on submission of
requisite bank guarantees. On 28th July 2011, Kay Bouvet informed
Overseas that it had submitted necessary Guarantees to Mashkour. On
the advice of Mashkour, Overseas paid an amount of Rs.47,12,10,000/-
to Kay Bouvet. There were certain disputes with regard to exchange
rate, on account of which, Kay Bouvet informed Mashkour that it ought
to have been paid more amount in Indian Rupees.
4. After execution of second tranche of USD 125 Million on 24th
July 2013, between Republic of Sudan and Exim Bank, an agreement
was executed between Mashkour and Overseas on 9th February 2014,
for balance amount of USD 124,975,000 for financing the final part of
the Sugar Factory Project. On 30th October 2014, Overseas informed
Exim Bank to transfer partial amount of USD 95,580,000 in favour of
Kay Bouvet from the funds to be received under the LoC in relation to
Sugar Project.
5. It appears that in the meantime, there was certain exchange of
communications between the Ministry of External Affairs, Government
of India (hereinafter referred to as the "GoI") and the Sudan Government.
In pursuance to such exchange of communications, on 17th April 2017,
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the Ambassador of Sudan to India addressed to the Minister of State of
External Affairs, GoI and advised to terminate the contract of Mashkour
with Overseas and in turn to appoint Kay Bouvet as a Contractor. In
response thereto, the Ministry of External Affairs informed the
Ambassador of Sudan that it will be necessary to execute an agreement
with Kay Bouvet in order to enable Exim Bank to release funds to Kay
Bouvet. Vide communication dated 25th April 2017, the Ambassador of
Sudan informed Mashkour to enter an agreement with Kay Bouvet as a
direct contract for unutilized portion of GoI's LoC for USD 150 Million.
It was also informed that the advance amount of Rs.47,12,10,000/-
received by Kay Bouvet from the first tranche of USD 25 Million was
to be adjusted against supplies to be made to Mashkour for completing
the project.
6. On 15th June 2017, Mashkour terminated the contract with
Overseas for failure on its part to perform the duties. Overseas filed a
Civil Suit being No. 785 of 2017 before the High Court of Bombay seeking
specific performance of contract and an order of injunction from
appointing Kay Bouvet as a Contractor in the Mashkour Project. Notice
of Motion No. 1314 of 2017 was also moved for injunction. Vide order
dated 27th June 2017, prayer for ad interim relief made by Overseas
came to be rejected by the Bombay High Court.
7. Vide communication dated 5th July 2017, Mashkour informed
Kay Bouvet about the developments and termination of contract and
further informed that the advance payment of Rs.47,12,10,000/- received
by Kay Bouvet from Overseas, was to be adjusted against supplies to
be made to Mashkour for completion of the Project. It was further
informed that Overseas will not claim back the said amount from Kay
Bouvet. Accordingly, on the same day an agreement came to be executed
between Mashkour and Kay Bouvet. The same was informed by the
Ambassador of Sudan to the Ministry of External Affairs on 11th July
2017.
8. A Demand Notice under Section 8 of the IBC was served upon
Kay Bouvet by Overseas alleging default under the Tripartite Agreement
and claiming an amount of USD 10.62 Million, paid by Overseas to Kay
Bouvet. Kay Bouvet vide communication dated 6th December 2017,
denied the claim of Overseas. It was specifically pointed out that the
amount which was paid to Kay Bouvet by Overseas, was received on
behalf of Mashkour and it was only routed through Overseas and the
KAY BOUVET ENGINEERING LTD. v. OVERSEAS INFRASTRUCTURE
ALLIANCE (INDIA) PRIVATE LIMITED [B. R. GAVAI, J.]
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same stands adjusted under new agreement. On 27th December 2017,
Overseas claiming itself to be an Operational Creditor, filed a petition
under Section 9 of the IBC before NCLT, Mumbai being CP (IB)
No.20(MB)/2018. Vide order dated 26th July 2018, the NCLT dismissed
the petition. Overseas carried the same in an appeal being Company
Appeal (AT) (Insolvency) No. 582 of 2018 before the NCLAT. By the
impugned order dated 21st December 2018, NCLAT allowed the appeal
as aforesaid. Being aggrieved thereby, the appellant-Kay Bouvet has
approached this Court.
9. Shri Jayant Bhushan, learned Senior Counsel appearing on behalf
of the appellant-Kay Bouvet submitted that by no stretch of imagination,
the claim made by Overseas could be considered to be an "Operational
Debt" and as such, Overseas cannot be an "Operational Creditor",
enabling it to invoke the jurisdiction of NCLT under Section 9 of the
IBC. Shri Bhushan further submitted that Kay Bouvet could not have
moved as a Financial Creditor and as such, by stretching the definition
of "Operational Creditor", though it does not fit in the same, has filed the
proceedings under Section 9 of the IBC. The learned Senior Counsel
submitted that no amount is receivable by Overseas from Kay Bouvet in
respect of the provisions of goods or services, including employment or
a debt in respect of the payment of dues and as such, it will not fit in the
definition of "Operational Debt" as provided under sub-section (21) of
Section 5 of the IBC. The learned Senior Counsel submitted that by the
same analogy, Overseas would also not fall under the definition of
"Operational Creditor".
10. Shri Bhushan further submitted that as a matter of fact, the
payment which was made to Kay Bouvet by Overseas, was from the
amount received by it from Mashkour. He submitted that the material
placed on record would clearly fortify this position. The learned Senior
Counsel submitted that, in any case, perusal of Clause 14.1 of the
Tripartite Agreement would clearly show that the amount so paid, was
paid by Mashkour to Overseas. It is submitted that in any case, the
material placed on record and specifically the Demand Notice and reply
thereto, clearly showed that there was an "existence of dispute" and as
such, the NCLT had rightly dismissed the petition. It is submitted that,
however, the NCLAT has misconstrued the provisions and allowed the
appeal and directed admission of Section 9 petition. It is submitted that
the jurisdiction of the adjudicating authorities under IBC is limited and it
can adjudicate only on the limited areas that are delineated in the Statute.
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11. Shri C.A. Sundaram, learned Senior Counsel appearing for
respondent-Overseas, on the contrary, asserts that the amount which
was paid to Kay Bouvet, was the amount paid from the funds of Overseas
and not from Mashkour. He submitted that perusal of material placed on
record would reveal that Kay Bouvet has admitted of receiving the amount
from Overseas and once the party admits of any claim, the same would
come in the definition of "Operational Debt" as defined under sub-section
(21) of Section 5 of the IBC and enable the party to whom admission is
made to file the proceedings under Section 9 of the IBC being an
"Operational Creditor". The learned Senior Counsel therefore submitted
that NCLAT rightly considered the provisions and allowed the appeal of
Overseas and directed admission of Section 9 petition. He therefore
submitted that the present appeal deserves to be dismissed.
12. Though, elaborate submissions have been made on behalf of
both the parties, we are of the considered view that the present appeal
can be decided on a short ground without going into the other aspects of
the matter. It will be relevant to refer to Sections 8 and 9 of the IBC:-
"8. Insolvency resolution by operational creditor.-(1) An
operational creditor may, on the occurrence of a default, deliver a
demand notice of unpaid operational debtor 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, or] 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 [payment] 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.
KAY BOUVET ENGINEERING LTD. v. OVERSEAS INFRASTRUCTURE
ALLIANCE (INDIA) PRIVATE LIMITED [B. R. GAVAI, J.]
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Explanation.-For the purposes of this section, a "demand
notice" means a notice served by an operational creditor to
the corporate debtor demanding [payment] 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, if available;]
[(d) a copy of any record with information utility confirming
that there is no payment of an unpaid operational debt by
the corporate debtor, if available; and]
[(e) any other proof confirming that there is no payment of
an unpaid operational debt by the corporate debtor or such
other information, as may be prescribed.]
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(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 sub-section (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 [payment] 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.
(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 [payment] 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
KAY BOUVET ENGINEERING LTD. v. OVERSEAS INFRASTRUCTURE
ALLIANCE (INDIA) PRIVATE LIMITED [B. R. GAVAI, J.]
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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."
13. Perusal of the aforesaid provisions would reveal that an
"Operational Creditor", on the occurrence of default, is required to deliver
a "Demand Notice" of unpaid "Operational Debt" or a copy of invoice,
demanding payment of amount involved in the default to the "Corporate
Debtor" in such form and manner as may be prescribed. Within 10 days
of the receipt of such "Demand Notice" or copy of invoice, the
"Corporate Debtor" is required to either bring to the notice of the
"Operational Creditor" "existence of a dispute" or to make the payment
of unpaid "Operational Debt" in the manner as may be prescribed.
Thereafter, as per the provisions of Section 9 of the IBC, after the expiry
of the period of 10 days from the date of delivery of notice or invoice
demanding payment under sub-section (1) of Section 8 and if the
"Operational Creditor" does not receive payment from the "Corporate
Debtor" or notice of the dispute under sub-section (2) of Section 8 of
the IBC, the "Operational Creditor" is entitled to file an application before
the adjudicating authority for initiating the Corporate Insolvency Resolution
Process.
14. The issue is no more res integra. It will be relevant to refer to
paragraph 38 of the judgment of this Court in the case of Mobilox
Innovations Private Limited v. Kirusa Software Private Limited1:-
"38. 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 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
1 (2018) 1 SCC 353
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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 up to
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 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."
15. It could thus be seen that this Court has held that one of the
objects of the IBC qua operational debts is to ensure that the amount of
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 has been held that it is for this reason that it is enough
that a dispute exists between the parties.
16. It will further be apposite to refer to the following observations
of this Court in Mobilox Innovations Private Limited (supra), wherein
this Court has considered the terms "existence", "genuine dispute" and
"genuine claim" and various authorities construing the said terms:-
"45. The expression "existence" has been understood as follows:
"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.
KAY BOUVET ENGINEERING LTD. v. OVERSEAS INFRASTRUCTURE
ALLIANCE (INDIA) PRIVATE LIMITED [B. R. GAVAI, J.]
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Something that exists; an entity, a being. All that exists. (P.
894, Oxford English Dictionary)"
46. 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 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. [Spencer Constructions Pty Ltd. v. G &
M Aldridge Pty Ltd., 1997 FCA 681 (Aust)] The Australian High
Court had to construe Section 459-H 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)***"
47. 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, C.J. in Eq in Eyota Pty
Ltd. v. Hanave Pty Ltd. [Eyota Pty Ltd. v. Hanave Pty Ltd.,
(1994) 12 ACSR 785 (Aust)] ACSR at p. 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 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 [Eng Mee Yong v.
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Letchumanan, 1980 AC 331 : (1979) 3 WLR 373 (PC)]
AC at p. 341G), or 'a patently feeble legal argument or an
assertion of facts unsupported by evidence': cf South
Australia v. Wall [South Australia v. Wall, (1980) 24
SASR 189 (Aust)] SASR at p. 194.'
His Honour also referred to the judgment of Lindgren, J.
in Rohalo Pharmaceutical Pty Ltd. [Rohalo Pharmaceutical
Pty Ltd. v. RP Scherer, (1994) 15 ACSR 347 (Aust)] where,
at p. 353, his Honour said:
'The provisions [of Sections 459-H(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 Section
459-H 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
that there is a dispute and that it is a genuine dispute.'
See Mibor Investments Pty Ltd. v. Commonwealth Bank of
Australia [Mibor Investments Pty Ltd. v. Commonwealth
Bank of Australia, (1993) 11 ACSR 362 (Aust)] ACSR at pp.
366-67, followed by Ryan, J. in Moyall Investments Services
Pty Ltd. v. White [Moyall Investments Services Pty
Ltd. v. White, (1993) 12 ACSR 320 (Aust)] ACSR at p. 324.
KAY BOUVET ENGINEERING LTD. v. OVERSEAS INFRASTRUCTURE
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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 Engg. Pty
Ltd. v. Kilpatrick Green Pty Ltd. [John Holland
Construction and Engg. Pty Ltd. v. Kilpatrick Green Pty
Ltd., (1994) 12 ACLC 716 (Aust)] ACLC at p. 718, followed
by Northrop, J. in Aquatown Pty Ltd. v. Holder Stroud Pty
Ltd. [Aquatown Pty Ltd. v. Holder Stroud Pty Ltd., Federal
Court of Australia, 25-6-1996, Unreported]
In Morris Catering (Australia) Pty Ltd. [Morris Catering
(Australia) Pty Ltd., In re, (1993) 11 ACSR 601 (Aust)]
ACSR at p. 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 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).'
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In Scanhill Pty Ltd. v. Century 21 Australasia Pty
Ltd. [Scanhill Pty Ltd. v. Century 21 Australasia Pty Ltd.,
(1993) 12 ACSR 341 (Aust)] ACSR at p. 357 Beazley, J. said:
'... the test to be applied for the purposes of Section 459-H
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. [Chadwick
Industries (South Coast) Pty Ltd. v. Condensing Vaporisers
Pty Ltd., (1994) 13 ACSR 37 (Aust)] ACSR at p. 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 vexatious or frivolous. It must be satisfied that
there is a claim that may have some substance.'
In Greenwood Manor Pty Ltd. v. Woodlock [Greenwood
Manor Pty Ltd. v. Woodlock, (1994) 48 FCR 229 (Aust)]
Northrop, J. referred to the formulations of Thomas, J.
in Morris Catering (Australia) Pty Ltd., In re [Morris
Catering (Australia) Pty Ltd., In re, (1993) 11 ACSR 601
(Aust)] ACLC at p. 922 and Hayne, J. in Mibor Investments
Pty Ltd. v. Commonwealth Bank of Australia [Mibor
Investments Pty Ltd. v. Commonwealth Bank of Australia,
(1993) 11 ACSR 362 (Aust)], where he noted the dictionary
definition of "genuine" as being in this context "not spurious
... real or true" and concluded (at p. 234):
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'Although it is true that the Court, on an application under
Sections 459-G and 459-H 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:
(i) the dispute be bona fide and truly exist in fact;
(ii) 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.""
17. It is thus clear that once the "Operational Creditor" has filed
an application which is otherwise complete, the adjudicating authority
has to reject the application under Section 9(5)(ii)(d) of IBC, if a notice
has been received by "Operational Creditor" or if there is a record of
dispute in the information utility. What is required is that the notice by
the "Corporate Debtor" must bring to the notice of "Operational Creditor"
the existence of a dispute or the fact that a suit or arbitration proceedings
relating to a dispute is pending between the parties. All that the
adjudicating authority is required 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 a mere bluster. It has
been held that however, at this stage, the Court is not required to be
satisfied as to whether the defence is likely to succeed or not.