NCLT New Delhi: Composite Section 9 Petition Based On Pooled Debt By Multiple Operational Creditors Not Maintainable Under IBC
Pranav B Prem
The National Company Law Tribunal (NCLT), New Delhi Bench comprising Shri Manni Sankariah Shanmuga Sundaram (Judicial Member) and Shri Atul Chaturvedi (Technical Member) has held that a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC) cannot be admitted on the basis of pooling of debt by multiple operational creditors. The Tribunal clarified that while Section 7 of the Code expressly permits joint applications by financial creditors due to the collective nature of financial debt, no such provision exists under Section 9, which governs operational creditors.
The petition was filed by Invoice Discounters of Adaptio Facility Management Pvt. Ltd. through Mr. Arunava Ghosh as an operational creditor seeking initiation of Corporate Insolvency Resolution Process (CIRP) against M/s CBRE South Asia Pvt. Ltd. The applicant claimed that an amount of ₹1,08,82,770.32 was outstanding as operational debt. It was argued that the applicant had stepped into the shoes of the original service provider, Adaptio Facility Management Pvt. Ltd., by virtue of a “Transfer of Rights Agreement,” and was thus entitled to recover the dues. The applicant further contended that the corporate debtor had not disputed the existence of the debt but only its quantification.
On the other hand, the respondent argued that the same eleven individuals, who had earlier approached NCLT Chennai in another proceeding, had now filed the present petition under a different banner but for a nearly identical claim amount, based again on the same unstamped agreement dated 11.01.2019. According to the respondent, this amounted to concealment of material facts and forum shopping, intended to force a financially viable company into insolvency. It was also contended that Adaptio continued to issue illegal GST invoices even after cancellation of its GST registration, thereby attempting to defraud both the respondent and the tax authorities.
The Tribunal observed at the outset that although the IBC does not prohibit operational creditors from filing a joint application, each operational creditor must independently satisfy the threshold requirement of default of ₹1 crore under Section 4 of the Code. In the present case, no single creditor had claimed a default exceeding this limit. The petition was instead premised on a computation of debt pooled together by multiple creditors, raising concerns about its maintainability.
The Bench contrasted the scheme of Sections 7 and 9 of the IBC. While Section 7(1) allows financial creditors to file applications jointly or severally, Section 9 only contemplates an application by “the operational creditor” in singular form, after issuance of a demand notice. The Tribunal emphasized that pooling of debts, though statutorily recognised in Section 7, is not permissible under Section 9 unless each creditor individually issues a notice under Section 8 and meets the threshold independently.
Since, in the present case, multiple operational creditors had pooled their claims and filed a composite application through a common representative without individually meeting the statutory conditions, the Tribunal held the application to be legally untenable. Accordingly, the petition (CP No. IB 74(ND)/2024) was dismissed at the threshold as not maintainable, with no order as to costs.
Appearance
For Applicants: Mr. Siddhant Jaiswal, Mr. Abhishek Verma, Advs.
For Respondent: Mr. Priyam Kamra, Mr. Pratik Malik, Advs.
Cause Title: Invoice Discounters of Adaptio Facility Management Pvt Ltd Through Mr. Arunava Ghosh. V. M/s CBRE South Asia Pvt. Ltd.
Case No: CP No.: IB 74(ND)/2024
Coram: Shri Manni Sankariah Shanmuga Sundaram [Judicial Member], Shri Atul Chaturvedi [Technical Member]
