Dispute - IBC

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.