NCLT Chennai Rejects Carlsberg's Insolvency Plea Against Accord Over ₹3.06 Crore Bottle Charges

The National Company Law Tribunal (NCLT), Chennai, on 16 October dismissed an insolvency petition filed by Carlsberg India Private Limited against Accord Distillers and Brewers Private Limited over an alleged operational debt of Rs. 11.27 crore.

A Bench comprising Judicial Member Jyoti Kumar Tripathi and Technical Member Ravichandran Ramasamy held that a genuine pre-existing dispute over bottle underwriting charges bars the initiation of insolvency proceedings under Section 9 of the Insolvency and Bankruptcy Code, 2016 (IBC), where the claim remains tentative and its liability has not been established. It observed:

“A claim that is merely tentative, unliquidated, or an un adjudicated claim for damages/costs cannot constitute a "debt due and payable" to trigger insolvency under Section 9….A claim that has not attained finality or certainty does not satisfy the statutory threshold of a 'debt due and payable' under Section 3(11) read with Section 5(21) of the Code.”

The dispute arose from a licence agreement dated 4 March 2015, under which Carlsberg granted Accord an exclusive licence to brew, bottle, market and distribute its products in Tamil Nadu. Carlsberg claimed unpaid royalties, bottle sale dues, interest and bottle underwriting charges.

The parties had earlier settled a separate insolvency proceeding concerning previous dues through an agreement dated 16 November 2022. Carlsberg alleged that Accord paid Rs. 14.21 crore under the settlement agreement belatedly, on 16 March 2023.

They had also agreed that Accord would continue operating under the original licensing agreement from September 2022. Carlsberg claimed that, despite repeated reminders, Accord paid only Rs. 1.15 crore towards the outstanding dues.

Carlsberg claimed Rs. 6.69 crore towards royalties, Rs. 5.19 lakh towards bottle sales and Rs. 1.46 crore as interest on delayed payments. It also sought Rs. 3.06 crore towards bottle underwriting costs, alleging that Accord had failed to provide the required data on bottle consumption, purchases and losses. It acknowledged that it had calculated the underwriting charges tentatively using the limited information available.

Accord opposed the petition, contending that the claims did not constitute operational debt and that genuine pre-existing disputes existed between the parties. During the proceedings, it expressed willingness to settle the outstanding dues, excluding the bottle underwriting charges.

The Tribunal directed Carlsberg to communicate whether it would waive or reduce these charges. Carlsberg declined to offer any concession or compromise.

Subsequently, Accord paid Rs. 8.21 crore towards the outstanding royalty and bottle sales invoices, which Carlsberg acknowledged. However, the Rs. 3.06 crore claim towards bottle underwriting costs remained unpaid.

The Tribunal found that Carlsberg had calculated the underwriting charges tentatively on the basis of limited and incomplete information. It held that Carlsberg had not produced sufficient material to establish that the amount constituted operational debt due and payable under the IBC.

Further, the Bench observed that resolving the parties' rival contentions required detailed investigation and adjudication, which could not be undertaken in summary proceedings under Section 9.

It noted that Accord had paid Rs. 8.21 crore and that the remaining claim of Rs. 3.06 crore was subject to a bona fide pre-existing dispute that arose before the statutory demand notice. It concluded:

“we are satisfied that there existed a real and bona fide pre-existing dispute with regard to bottle underwriting costs between the parties prior to issuance of the statutory demand notice.”

Accordingly, the NCLT dismissed the company petition.

For Petitioners: Advocates CT Murugappan, Shaheedha Fathima and B Prashanth Nadaraj

For Respondents: Advocates Pawan Jabakh and K.M Ashif