# In the matter of Achenbach Buschhutten GmbH & Co. Vs Arcotech Limited CA (AT) (Insolvency) 97-2018

> NCLAT judgment dated 2018-11-30. Citation: TCN-2018-NCLAT-00031. The Appellant, Achenbach Buschhutten GmbH & Co., filed an application under Section 9 of the…

- **Court:** NCLAT
- **Order date:** 30 Nov 2018
- **Citation:** TCN-2018-NCLAT-00031
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/achenbach-buschhutten-gmbh-co-vs-arcotech-limited-ca-05f85e22

## Summary

### Background

The Appellant, Achenbach Buschhutten GmbH & Co., filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, to initiate the Corporate Insolvency Resolution Process against the Respondent, Arcotech Limited, the Corporate Debtor. The Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Chandigarh, dismissed the appeal due to a notice of dispute raised by the Respondent and a defect in the judgment. The matter was initially heard by the Appellate Tribunal, which dismissed the appeal on other grounds, holding that a foreign bank's 'record of default' was not recognized under the I&B Code, and the bank had no office or account in India. This decision was based on a previous Appellate Tribunal decision in Macquarie Bank

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## Facts

Achenbach Buschhutten GmbH & Co. (Appellant) and Arcotech Limited (Respondent/Corporate Debtor) entered into an agreement for the supply of a hot mill with electrical panels and switch cabinets. The agreement was initially dated 23rd December, 2014, and subsequently superseded by a 'supply contract agreement' on 9th November, 2015. A dispute arose regarding the advance payment guarantee provided by the Appellant, which the Respondent claimed was from Hermes instead of a commercial bank and thus unacceptable according to Reserve Bank of India regulations. The Respondent returned the original guarantee and requested a guarantee from a commercial bank. The Appellant issued a statutory demand notice for payment of Euro 4,472,638.99 under Sections 433 and 434 of the

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## Issues and analysis

### Issue 1: Whether a pre-existing dispute existed between the Appellant (Operational Creditor) and the …

**Ratio:** The legal principle is that an application under Section 9 of the Insolvency and

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**Reasoning:** The court reasoned that the Respondent had raised a dispute regarding the ineligibility

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**Interpretation:** The interpretation of 'dispute' in the context of Section 9 of the I&B Code

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**Application:** In this case, the court applied the ratio to the facts by noting that the

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## Parties

- **Judges:** S.J. Mukhop…; Bansi Lal…
- **Appellants:** Achenbach…
- **Respondents:** Arcotech L…
- **Advocates:** Vivek S…; Yash P…; +9 more

## Timeline

- **2014-12-23 — Initial Agreem…**: The initial agreement between the parties for the supply of goods was dated 23rd…
- **2015-11-09 — Supply Contract…**: The initial agreement was superseded by a 'supply contract agreement' entered on 9th…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 9 — Application for initiation of corporate insolvency…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-9)

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