10th INSOL NLIU NATIONAL CORPORATE LAW MOOT COURT COMPETITION 2022

TEAM CODE: T-05A

10th INSOL INDIA- NLIU

NATIONAL CORPORATE LAW

MOOT COURT COMPETITION, 2022

BEFORE THE HON’BLE SUPREME COURT OF INDIA

UNDER SECTION 62 OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016

IN THE MATTER OF:

PADME AMIDALA & ANR APPELLANT

R2D2 LTD. & ANR RESPONDENTS

UPON SUBMISSION TO THE HON’BLE JUDGES OF THE SUPREME COURT OF

INDIA

MEMORANDUM for APPELLANTS

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MEMORANDUM ON BEHALF OF THE APPELLANT

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS……………………………………………………...…...….3

INDEX OF AUTHORITIES.....................................................................................................4

STATEMENT OF JURISDICTION.........................................................................................7

STATEMENT OF FACTS .......................................................................................................8

ISSUES FOR CONSIDERATION .........................................................................................10

SUMMARY OF ARGUMENTS ............................................................................................11

ARGUMENTS ADVANCED ................................................................................................12

PRAYER………………………………………………….…………………………………17

MEMORANDUM for APPELLANTS

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LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION
& And
§ Section

¶ Paragraph

AIR All India Reporter

Anr. Another

CIRP Corporate Insolvency Resolution

Process
IBC/Code Insolvency and Bankruptcy Code

NCLAT National Company Law

Appellate Tribunal
NCLT National Company Law Tribunal

Ors. Others
SC Supreme Court of India

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INDEX OF AUTHORITIES

 STATUES

1. The Insolvency & Bankruptcy Code, 2016 [Act 31 of 2016].

 CASE LAWS

1. M/s Brand Realty Services Ltd. v. M/s Sir John Bakeries India Pvt. Ltd.,Company
Appeal (AT) (Insolvency) No. 958 of 2020
2. M/s Delhi Control Devices (P) Limited v. M/s Fedders Electric and Engineering Ltd.,
CP No. (IB)343/ALD/2018
3. Transmission Commission of Andhra Pradesh Limited v. Equipment Conductors and
Cables Limited, (2019) 12 SCC 697
4. Sandvik Asia Private Limited v. The Indure Private Limited, CA(AT)(Ins)No. 737 of
2019
5. Mohit Minerals Limited v. Shree Rama Newsprint Limited, CA(AT)(Ins)No. 737 of
2019
6. Mobilox Innovation Pvt. Ltd. vs. Kirusa Software Pvt. Ltd, (2018) 1 SCC, Civil
Appeal No. 9405 of 2017.
7. Citicare Super Specialty Hospital v. Vighnaharta Health Visionaries Pvt., CA(AT)
(Ins)No.414- 2019
8. K. Kishan v. Vijay Nirman Company Private Limited, (2018) 17 SCC 662
9. Steel India v. Theme Developers Pvt. Ltd., Company Appeal (AT) (INSOLVENCY)
No. 1014 of 2019
10. Sandvik Asia Private Limited v. The Indure Private Limited, CA(AT)(Ins)No. 737 of
2019
11. Meyer Apparel Ltd. & Anr. Vs Surbhi Body Products Pvt. Ltd., CA (AT) Nos. 33 &
34- 2017
12. India Trading Oil Company v. Abhinandan Dyeing Pvt. Ltd., CA(AT)(Ins) No. 917 of
2019
13. Sobha Limited v. Pancard Clubs Ltd., CA (AT) (Insolvency) No. 162-2017
14. Avalon Sports and Media v. Intex Technologies India Ltd., CA(AT)(Ins)No. 1114-
2019;

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15. Pleasant Valley Development Pvt. Ltd. v. Spain Hospitality Pvt. Ltd., CA(AT)
(Insolvency) No. 799-2019;
16. Santosh Shinde v. Fairmacs Shipping and Transport Services Pvt. Ltd. & Anr., CA
(AT) (Insolvency) No. 798-2018 & 46- 2019;
17. Bhandari Hosiery Exports Ltd. & Ors. v. In-Time Garments Pvt., CA(AT)
(Insolvency) No.143-2019
18. Rajat Saini & Anr. v. Pret Study by Janak Fashions Private Limited, CA(AT)(Ins) No.
1026- 2019
19. M/s Allied Silica Limited Versus M/s Tata Chemicals Limited, Civil Appeal No
3668 of 2020
20. Horizon Translifters Pvt. Ltd. v. Garden Silk Mills Ltd., Company Appeal (AT)
(INSOLVENCY) No. 406 of 2020

 WEBSITES

1. Breach Of Settlement Agreement Not a Ground to Trigger CIRP: NCLT Delhi

Rejects Application for Revival of Petition
https://www.livelaw.in/news-updates/nclt-delhi-breach-of-settlement-agreement-
section-9-of-the-insolvency-and-bankruptcy-act-corporate-insolvency-resolution-
process-cirp-corporate-debtor-209498

2. Insolvency Code misuse: Supreme Court sends strong message

https://economictimes.indiatimes.com/news/politics-and-nation/insolvency-code-
misuse-supreme-court-sends-strong message/articleshow/61010965.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

3. Operational creditors lead in filing bankruptcy cases,

https://www.livemint.com/news/india/operational-creditors-lead-in-filing-
bankruptcy-cases-11661531718852.html

 DATA BASES REFFERED

1. www.scconline.com
2. www.manupatra.com

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3. www.lexisnexis.com
4. www.mca.gov.in
5. www.ibclaw.in

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STATEMENT OF JURISDICTION

THE COUNSEL FOR APPLICANTS, PADME AMIDALA &ANR., HEREBY SUBMIT

TO THIS HON’BLE COURT’S APPELLATE JURISDICTION UNDER SECTION 62 OF
THE INSOLVENCY AND BANKRUPTCY CODE, 2016.

THIS MEMORANDUM SETS FORTH THE FACTS, LAWS, AND THE

CORRESPONDING ARGUMENTS ON WHICH THE CLAIMS ARE BASED IN THE
INSTANT CASE. THE APPELLANTS AFFIRMS THAT THEY SHALL ACCEPT ANY
JUDGEMENT OF THIS HON'BLE COURT AS FINAL AND BINDING UPON ITSELF
AND SHALL EXECUTE IT IN ITS ENTIRETY AND IN GOOD FAITH.

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STATEMENT OF FACTS

1. The appeal case arises out of dispute between two parties regarding an unpaid debt. It is to
challenge the decision given by NCLAT and the admission of a petition by NCLT filed under
Section 9 of the IBC 2016 by the respondents.

I. Background

2. Ever since the liberalization, globalization and privatization reforms of 1991, the Indian
telecom sector has often been hailed as a shining success of these initiatives. One such market
player who has been operating in the telecom space since the last 15 years is Naboo
Telecommunications Limited.

II The Downfall of Naboo

3. By January 2020, Naboo started facing a liquidity crunch and had to undertake bridge
loans from various banks and financial institutions to be able to run its day-to-day operations.
Since 31 January 2020, Naboo had not been making monthly salary payments to its
employees. Naboo missed out on its quarterly repayment schedule for its commercial papers
on 15 July 2020. When news broke of Naboo defaulting on its debt servicing obligations,
Naboo’s employees lost all hope of seeing any of their deserved salaries. 5500 employees of
Naboo then came together and formed the Gungan Employee Union (“Gungan”) and held
several meetings with the management followed by various protests.

III The Default

4. Naboo had been availing services from R2D2 since 2016under a Master Services
Agreement (“MSA”) and both parties shared a good commercial relationship. Pursuant to the
services rendered by it to Naboo under the MSA, R2D2raised invoices from time-to-time on
Naboo. As of 31 December, 2019, an amount of Rs. 3,51,99,44,675/- was due and payable by
Naboo to R2D2 under the MSA. Pursuant thereto on 31 January 2020, Naboo sent an email to
R2D2, assuring R2D2 of timely payment of the outstanding dues. On 22 February 2020,
Naboo informed R2D2 that during the vetting of invoices raised by R2D2, its audit
department has noticed serious deficiencies and as a result, it will not be able to clear the
above dues until such issues are resolved. It was informed that R2D2 had failed to attach
requisite supporting documents to corroborate the services actually rendered and the amounts

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payable for the same in the invoices, and therefore, any prior
acknowledgment/admission/assurance 6 by Naboo ought to be considered as null and void.
On 24 February 2020, R2D2 replied to the said email stating that it had submitted the
invoices in the same manner as it had been doing all along and had never received any
objection from Naboo.

IV The Settlement

5. Padme (promoter of Naboo) addressed an email to R2D2 on 25 February 2020, suggesting

parties to enter into a settlement agreement whereby, Naboo would be required to clear all
outstanding dues to R2D2 by end of March 2020in three equal instalments along with interest
on such amounts. A settlement agreement was shared by Padme on 1 March2020
incorporating the repayment schedule. The same was executed on 2 March 2020 by Naboo
and R2D2, with the intention that the settlement agreement would henceforth govern the
relationship between the two parties. Naboo paid the 1st instalment along with interest to
R2D2 on 3 March 2020, but thereafter failed to make good on 2 nd and 3rd instalments falling
due on 15 March and 31 March 2020. Upon query by R2D2, Padme informed R2D2 on 15
April 2020 that due to COVID related disruptions/ some sudden disruption in its financial
planning, Naboo will not be able to pay the 2nd and 3rd instalments under the settlement
agreement and requested Naboo to rework the repayment schedule. R2D2, on 30 April 2020,
sent a demand notice to Naboo under Section 8 of the IBC to pay the balance amount under
the invoices along with interest thereon. In response to this, Naboo replied on 7May 2020,
stating that the parties had an existing dispute as R2D2’s invoices lacked necessary
supporting.

V. The Resultant Litigation

6. R2D2 filed a petition against Naboo under Section 9 of IBC before the National Company
Law Tribunal, Delhi (“NCLT”) on 1 July 2020. Naboo’s CIRP commenced on 7 August
2020.This order was challenged before the National Company Law Appellate Tribunal, New
Delhi (“NCLAT”)on 25 August 2020. However, this appeal was rejected by the Ld. NCLAT
on 1 January 2021 inter-alia on the ground that the dispute raised by Naboo was nothing but a
moonshine. Thereafter on 15 January 2021, Padme and Bail preferred an appeal against the
NCLAT order before the Hon’ble Supreme Court of India.

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ISSUES FOR CONSIDERATION

1. Whether NCLT and NCLAT had erred in admitting the Section 9 petition filed by
R2D2 against Naboo?
(i) Whether the debt in question would fall under Section 5(21) of the Code?
(ii)Whether there was a pre-existing dispute between the parties?

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SUMMARY OF ARGUMENTS

1. NCLT and NCLAT erred in admitting the petition under Section 9 filed by R2D2.

It is argued that both the tribunals erred in application of Section 9 of the IBC 2016 to the
facts of this case. The premise of the present issue is in two folds. First, the debt arising
out of the settlement agreement does not come under Section 5(21) of the IBC. Second,
there was a pre-existing dispute between the parties which is enough for the petition filed
under Section 9 to become non-maintainable. It was only carried out to put pressure on
the appellants to pay their debts. This goes against the fundamental intent of bankruptcy
legislation, which was to provide relief to both creditors and debtors.

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ARGUMENTS ADVANCED

1. NCLT and NCLAT erred in admitting the petition under Section 9 filed by R2D2

1. It is humbly submitted to the Hon’ble Court that the petition filed by R2D2 under
section 9 of the IBC 2016 should have been rejected by NCLT and subsequently by
NCLAT. The basic essentials of Section 9 were ignored by both the tribunals.

(i) The debt in question does not fall under Section 5(21) of the Code.

2. Section 5(21) of the IBC 2016 describes operational debt as “a claim in respect of the
provision of goods or services including employment or a debt in respect of the
repayment of dues arising under any law for the time being in force and payable to the
Central Government, any State Government or any local authority”. 1The definition
does not talk about the debt arising out of settlement, hence the debt in the present
case cannot be said to be an operational debt.
3. Moreover, in the case M/s Brand Realty Services Ltd. v. M/s Sir John Bakeries India
Pvt. Ltd.,2it was questioned whether default of instalments under Settlement
Agreement will be considered as operational debt under the Code?
4. The NCLT, Delhi bench referred to a judgment of Hon’ble NCLT Allahabad Bench in
the matter of M/s Delhi Control Devices (P) Limited v. M/s Fedders Electric and
Engineering Ltd.3which said, “Unpaid instalment as per the settlement agreement
cannot be treated as operational debt as per Section 5(21) of IBC. The failure of
breach of settlement agreement can’t be a ground to trigger CIRP against Corporate
Debtor under the provision of IBC 2016 and remedy may lie elsewhere not
necessarily before the Adjudicating Authority.”

1
Insolvency and Bankruptcy Code, 2016
2
M/s Brand Realty Services Ltd. v. M/s Sir John Bakeries India Pvt. Ltd., Company Appeal (AT) (Insolvency)
No. 958 of 2020
3
M/s Delhi Control Devices (P) Limited v. M/s Fedders Electric and Engineering Ltd., CP No.
(IB)343/ALD/2018
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5. The tribunal reached to the conclusion that for the purpose of initiation of CIRP, there
must be relationship of corporate creditor and operational debt between the parties.
But in the present case, the default arises out of the settlement agreement hence the
relationship between the parties was not similar. Therefore, unpaid instalment cannot
be said operational debt under Section 5(21) of the IBC 2016 and cannot be a ground
for initiating CIRP.
6. In a recent case of Bajaj Rubber Company Pvt. Ltd. v Saraswati Timber Pvt. Ltd., the
NCLT Delhi Bench reiterated that breach of terms and conditions of a Settlement
Agreement does not come under the purview of Operational Debt under IBC and the
same cannot be a ground to trigger CIRP.4
7. This further establishes that the NCLT and NCLAT erred in considering this. The
APPELLANTs contend that this is one of the reasons why the admission of petitions
filed by R2D2 should have been rejected.

(ii) There was a pre-existing dispute between the parties.

8. According to section 9(3)(b) and section 9(5)(d) of the IBC 2016, there should not be
any pre-existing disputes between the parties for the initiation of CIRP. This has been
reaffirmed in cases like Transmission Commission of Andhra Pradesh Limited v.
Equipment Conductors and Cables Limited 5, Sandvik Asia Private Limited v. The
Indure Private Limited6 and Mohit Minerals Limited v. Shree Rama Newsprint
Limited7.
9. The notice issued by Naboo regarding the lack of requisite supporting documents
indicates that there was some dispute that needed further investigation. The scope of
dispute was well explained in the case Mobilox Innovation Pvt. Ltd. vs. Kirusa
Software Pvt. Ltd8 as,
“It is clear, therefore, that once the operational creditor has filed an application, which
is otherwise complete, the adjudicating authority must reject the application under

4
Breach Of Settlement Agreement Not A Ground To Trigger CIRP: NCLT Delhi Rejects Application For
Revival Of Petition https://www.livelaw.in/news-updates/nclt-delhi-breach-of-settlement-agreement-section-9-
of-the-insolvency-and-bankruptcy-act-corporate-insolvency-resolution-process-cirp-corporate-debtor-
209498,last accessed 18/09/2022
5
Transmission Commission of Andhra Pradesh Limited v. Equipment Conductors and Cables Limited, (2019)
12 SCC 697
6
Sandvik Asia Private Limited v. The Indure Private Limited, CA(AT)(Ins)No. 737 of 2019
7
Mohit Minerals Limited v. Shree Rama Newsprint Limited, CA(AT)(Ins)No. 737 of 2019
8
Mobilox Innovation Pvt. Ltd. vs. Kirusa Software Pvt. Ltd, (2018) 1 SCC, Civil Appeal No. 9405 of 2017.

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S.9(5)(2)(d) if notice of dispute has been received by the operational creditor or there
is a record of dispute in the information utility”.9
10. The respondents failed to present the documents that were being asked by the
appellants which is enough to prove that there was an on-going dispute between the
two. They were given an opportunity to do so during the settlement but they failed to
recognise the implied condition, which gives the appellants another reason to stall the
repayment.
11. If there is part admission of dues and part dues are disputed and the same were
disputed prior to the issuance of demand notice, then such application under section 9
of the Code is barred by pre-existence of disputes.10Here, one of the three portions of
repayment was done and the remaining portion was due. This was enough to
constitute another condition for rejection of the petition filed under Section 9 of IBC
2016.
12. If notice of dispute has been received by the Operational Creditor or there is record of
dispute in the information utility (if any). Then such notice must bring to the notice of
the Operational Creditor the “existence” of a dispute or the fact that a suit or
arbitration proceeding relating to a dispute is pending between the Parties. Therefore,
all that the Adjudicating Authority is 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.11
13. The appellants had communicated about the existing issue about the invoices before
receiving the demand notice. Dispute in relation to the amount of debt raised much
prior to the issuance of demand notice to the Creditor will amount to pre-existing
dispute.12 The demand made by the appellants was not to merely delay the repayment
of the dues. Hence the reason for rejection of the petition filed by appellants on the
grounds of it being a moonshine by NCLAT is not acceptable.
14. The definition of dispute is “inclusive” and not “exhaustive”. The same has to be
given wide meaning provided it is relatable to the existence of the amount of the debt,
quality of good or service or breach of a representation or warranty. 13 This case is
relatable to the existence of the amount of debt.

9
Ibid para 40
10
Citicare Super Specialty Hospital v. Vighnaharta Health Visionaries Pvt., CA(AT)(Ins)No.414- 2019
11
K. Kishan v. Vijay Nirman Company Private Limited, (2018) 17 SCC 662; Sandvik Asia Private Limited v.
The Indure Private Limited, CA(AT)(Ins)No. 737 of 2019
12
Steel India v. Theme Developers Pvt. Ltd., Company Appeal (AT) (INSOLVENCY) No. 1014 of 2019
13
Meyer Apparel Ltd. & Anr. Vs Surbhi Body Products Pvt. Ltd., CA (AT) Nos. 33 & 34- 2017
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15. Furthermore, a discrepancy in amount of debt in terms of work order issued and the
invoice raised is a prima-facie dispute relatable to the existence of the amount of the
debt and hence, a pre-existence of dispute.14 Documents evidencing pre-existence of
disputes are enough proof to show that the application under section 9 is not
maintainable.15 Here, the demand for deficient documents proved that there was
discrepancy in the amount of debt and hence a dispute.
16. An appeal praying for dismissal of order admitting the Corporate Debtor into CIRP on
ground of pre-existence of dispute shall be backed proper documentary evidence and
communications exchanged between the Parties and not mere allegations.16 In this
case, there was proper communication between the parties and still the demand of
documents was not met by the respondents.
17. If at a given point the application is not a case of admitted or apparent debt and the
Adjudicating Authority is not expected to enter the disputed questions of facts. The
Adjudicating Authority is only required to notice whether there is a ‘pre-existence of
dispute’ or not.
18. The case of M/s Allied Silica Limited Versus M/s Tata Chemicals Limited 17 also
followed the same precedence of rejecting the appeal under Section 9 of the IBC 2016
on the ground that there was a pre-existing dispute.
19. The Supreme Court recently threw out Kirusa Software’s case sending a strong
message to operational creditors that the dedicated platform for loans resolution must
not be misused for settling commercial disputes.18
20. Operational creditors are increasingly initiating corporate insolvency resolution
proceedings against corporate debtors. According to the latest available data, a
majority of insolvency cases under the Insolvency and Bankruptcy Code (IBC) are
being filed by operational creditors seeking to recover dues. As a result, some experts
are concerned that this will go against the basic tenet of the IBC, which they say is a

14
India Trading Oil Company v. Abhinandan Dyeing Pvt. Ltd., CA(AT)(Ins) No. 917 of 2019; Sobha Limited v.
Pancard Clubs Ltd., CA (AT) (Insolvency) No. 162-2017
15
Avalon Sports and Media v. Intex Technologies India Ltd., CA(AT)(Ins)No. 1114- 2019; Pleasant Valley
Development Pvt. Ltd. v. Spain Hospitality Pvt. Ltd., CA(AT)(Insolvency) No. 799-2019; Santosh Shinde v.
Fairmacs Shipping and Transport Services Pvt. Ltd. & Anr., CA (AT) (Insolvency) No. 798-2018 & 46- 2019;
Bhandari Hosiery Exports Ltd. & Ors. v. In-Time Garments Pvt., CA(AT)(Insolvency) No.143-2019
16
Rajat Saini & Anr. v. Pret Study by Janak Fashions Private Limited, CA(AT)(Ins) No. 1026- 2019
17
M/s Allied Silica Limited Versus M/s Tata Chemicals Limited, Civil Appeal No 3668 of 2020
18
Insolvency Code misuse: Supreme Court sends strong message
https://economictimes.indiatimes.com/news/politics-and-nation/insolvency-code-misuse-supreme-court-sends-
strong-message/articleshow/61010965.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst ,last accessed 18/09/2022

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resolution, not recovery, mechanism by putting firms under pressure to clear their
dues.19
21. In the case of Pawan Khaitan V. Rahul Commerce Private Limited 20 the Hon’ble
High Court of Calcutta in Para 5 opined that “.the process of winding up could not be
used as a tool for debt collection, it is not a debt collecting court.”
22. The present case falls under precisely these conditions as the petition filed by the
Respondents had no solid grounds. It was done merely to pressurize the appellants to
clear their dues. This goes against the very purpose of the Insolvency laws which was
to relieve the creditors and the debtors.
23. Conclusively, it is contested on two grounds that Section 9 was not applicable in the
petition that was filed by R2D2. The first ground being that the debt in question is not
operational debt, hence does not come under the ambit of Section 9. And on the
second ground being that there a pre-existing dispute between the parties, which again
bars the case from falling under Section 9 of the IBC 2016.21
24. NCLT had sufficient reasons for not initiating the CIRP yet it ignored them and went
ahead with the process. NCLAT also erred in recognising the faults in application of
Section 9 of the IBC 2016 and dismissed the appeal petition. Therefore, the orders of
the NCLT AND NCLAT ought to be set aside.

19
Operational creditors lead in filing bankruptcy cases, https://www.livemint.com/news/india/operational-
creditors-lead-in-filing-bankruptcy-cases-11661531718852.html, last accessed 18/09/2022
20
Pawan Khaitan V. Rahul Commerce Private Limited, [2015]190 CompCase236 (call), para 5
21
Horizon Translifters Pvt. Ltd. v. Garden Silk Mills Ltd., Company Appeal (AT) (INSOLVENCY) No. 406 of
2020
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PRAYER

Wherefore in the light of facts presented, issues raised, arguments advanced and authorities
cited, the Counsel on behalf of the Respondents humbly prays before this Hon’ble Court that
it may be pleased to adjudge and declare that:

The order passed by honourable NCLT (dated July 1st 2020) and by honourable
NCLAT (dated 25th Aug 2020) should be quashed.

and/or pass any other order, direction, or relief that it may deem fit in the interest of justice,
equity, fairness, and good conscience.

For this act of kindness of your lordship, the appellants shall duty bound forever pray.

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