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Internal Problems Of Corporate Debtor Cannot Be Termed A Dispute As Per IBC Code

In Mr. Chetan Sharma Vs. Jai Lakshmi Solvents (P) Ltd., the Corporate Debtor tried to raise the issue of existence of dispute within the company before the Ld. NCLAT.  The Corporate Debtor said that the delivery of goods against which payment has been claimed by the creditors were fraudulently taken by the MD, who has since accepted his liability and has undertaken all the liabilities of the ‘Corporate Debtor’ incurred by him fraudulently. Thus, according to the Appellant, a novation of the contract took place, which makes the alleged sums recoverable only from Mr. Dinesh Arora and not from the ‘Corporate Debtor’.

The Ld. Tribunal held that it is a settled law that unilateral ‘transfer’ of liability does not constitute a ‘dispute’ within the meaning of Section 5(6) of the ‘I&B Code’. The ‘dispute’ under Section 5(6) of the ‘I&B Code’ has to be between the ‘Corporate Debtor’ and the ‘Operational Creditors’ and an inter-se dispute between two groups of shareholders of the ‘Corporate Debtor’ does not constitute a ‘dispute’ in reference to ‘Operational Creditors’.

An outstanding in the account of a borrower (customer), is a debt due and payable by the borrower to the Creditor. The Creditor is the owner of such debt. Such debt is an asset in the hands of a Creditor, whether ‘Secured Creditor’ or ‘Unsecured Creditor’ or ‘Operational Creditor’ or ‘Financial Creditor’. The creditor can always transfer its assets (debt) to an assignee but the borrower cannot transfer its liability of debt to a third party. Therefore, the Appellant cannot take advantage of agreement of transfer of liability of debt of ‘Corporate Debtor’ to Mr. Dinesh Arora.


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