Kay Bouvet Engineering Ltd. vs. Overseas Infrastructure Alliance (India) Private Limited [Civil Appeal No. 1137 of 2019]
Court while admitting section 9 application has only to see whether a dispute truly exists in fact and is not spurious, hypothetical or illusory
Brief: The Supreme Court in an appeal under section 62 of the IBC, 2016 allowed the appeal and found that there existed a dispute which needed to be decided in terms of evidence. Thus, the direction of the Ld. NCLAT to NCLT to admit the application was erroneous and liable to be set aside.
RELEVANT PARAGRAPH
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 oran 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. The Court also cannot go into the merits of the dispute except to the extent indicated hereinabove. It has been held that 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.