PRE-EXISITNG DIPSUTES- A STUDY ON CASE LAWS

1. M/s. Noveltech Feeds Private Limited Vs M/s. Mahimegha

Agritech Private Limited National Company Law Tribunal-
Hyderabad Bench

This is a case where a company named M/s. Noveltech Feeds Private

Limited (Operational Creditor or OC) filed an application with the
National Company Law Tribunal (NCLT) to initiate Corporate Insolvency
Resolution Process (CIRP) against M/s. Mahimegha Agritech Private
Limited (Corporate Debtor or CD).

 OC's Claim:
o The OC deals in poultry feed and claims the CD placed orders
for these feeds.
o Invoices for Rs. 1,66,40,224.18 were raised for these supplies
(invoices attached in application).
o An additional interest of Rs. 26,57,734 is claimed for delayed
payment (from Oct 2021 to June 2022).
o A demand notice for the total amount (Rs. 1,92,97,958.18)
was sent to the CD's registered and corporate address on June
17th, 2022.
 CD's Contentions:
o They argue that the OC did not comply with mandatory
requirements before filing the application under Section 9 of
the IBC.
o They claim the demand notice wasn't served at their
registered address (postal records show it was returned) and
the email address used was incorrect.
o They deny the invoices' validity and allege the OC fabricated
them.
o They claim a pre-existing dispute regarding the quality of the
goods (email dated July 19th, 2021).
o The amount claimed falls below the minimum threshold for
filing such an application (Rs. 1 crore as per notification dated
March 24th, 2020).

Key Points Considered by the Tribunal:

 Existence of Debt:
o The invoices and statements of account submitted by the OC
are considered as evidence of debt.
 o However, the Tribunal finds the OC lacked convincing
evidence (delivery challans, weight bridge slips, etc.) to
prove the actual supply of goods.

13. I. C. Existence of an undisputed debt is sine qua non

for
initiating CIRP. For proving that these goods were
supplied, genuineness of transaction and actual
movement of the goods are important. The Operational
Creditor should have relied upon more convincing
evidence e.g. acknowledgment of taking delivery of
goods, payment of freight charges, tax invoices,
material receipt notes, delivery challans, e-way bills,
weigh bridge slips, work completion certificate etc., but
there is nothing as such on record. The OC has tried to
take advantage of the email dated 19.07.2021 sent by
the CD to the OC (Pg. 20 of the Counter) to show that
in the letter, the CD has admitted its liability. However,
this email only shows that the goods were being
supplied to the Corporate Debtor and there is no
admission that the amount as claimed by the OC is to
be paid by the CD.

o The CD's denial of the invoices' validity and the pre-existing

dispute regarding quality raise doubt about the exact amount
owed.
o Without clear proof, the Tribunal cannot determine if the debt
exceeded the Rs. 1 crore threshold.

Dispute:

o The Tribunal considers the email from the CD highlighting

issues with the goods as evidence of a pre-existing dispute as
defined by Section 5(6) of the IBC.

Page 18: There is little doubt that Div 3 is intended to

be a complete code which prescribes a formula that
requires the court to assess the position
between the parties, and preserve demands where it
can be seen that
there is no genuine dispute and no sufficient genuine
offsetting claim.
That is not to say that the court will examine the merits
or settle the
dispute. The specified limits of the court's examination
are the
ascertainment of whether there is a "genuine dispute"
and whether
 there is a "genuine claim".

Pag 21: Although it is true that the Court, on an

application Under Sections 459-G and 459-H is not
entitled to decide a question as to whether a claim will
succeed or not, it must be satisfied that there is a
genuine dispute between the company and the
Respondent about the existence of the debt. If it can be
shown that the argument in support of the existence of
a genuine dispute can have no possible basis
whatsoever,
in my view, it cannot be said that there is a genuine
dispute. This does
not involve, in itself, a determination of whether the
claim will succeed
or not, but it does go to the reality of the dispute, to
show that it is real
or true and not merely spurious.

In our view a "genuine" dispute requires that:

(i) the dispute be bona fide and truly exist in fact;
(ii) the grounds for alleging the existence of a dispute
are real and not
spurious, hypothetical, illusory or misconceived.
We consider that the various formulations referred to
above can be helpful in determining whether there is a
genuine dispute in a particular case, so long as the
formulation used does not become a substitute for the
words of the statute.

Pg 25: 13. II. g. When the issues taken up in the email

are relating to
quality of goods and service, we think that the CD has
succeeded in raising a dispute describable as 'pre-
existing dispute'

Ruling:

 The applicant did not provide convincing evidence to prove the

actual supply of goods.
 The respondent had raised a pre-existing dispute regarding the
quality of the goods vide email dated 19.07.2021 before the issue of
demand notice under section 8 of the code.
 There was no evidence to show that the notice was sent to the
respondent's correct address.

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2. NATIONAL COMPANY LAW APPELLATE TRIBUNAL- NEW DELHI

Parties:

Operational Creditor: Sterling Enamelled Wires Pvt. Ltd.

Corporate Debtor-Nik-San Engineering Company Ltd.

Debt: The Operational Creditor claimed the Corporate Debtor owed

them Rs. 2,07,11,209 for materials supplied to manufacture
transformers.

Dispute: The Corporate Debtor contested the debt, claiming the

materials were faulty and they had previously communicated these
issues to the Operational Creditor.

Key Evidence:

The Operational Creditor relied on a letter sent by the Corporate

Debtor to Citi Commercial Bank acknowledging the outstanding
amount.

The Corporate Debtor argued they had raised pre-existing disputes

about the quality of materials.

Ruling:

The Appellate Tribunal upheld the Adjudicating Authority's decision to

admit the CIRP application due to the following reasons:

Debt Acknowledgment: The letter to Citi Bank was considered an

acknowledgment of the debt by the Corporate Debtor.

Pre-existing Dispute: Even though the Corporate Debtor had raised

concerns about the materials earlier, their subsequent
acknowledgment of the debt outweighed those concerns.

The pre-existing dispute defence was not upheld due to the later
acknowledgment of the debt.

3. National Company Law Appellate Tribunal, New Delhi

Parties:

Operational Creditor: Tanaya Enterprises Pvt. Ltd. (Respondent therein)

Corporate Debtor- Risa International Ltd. (Appellant therein)

Appellant's Arguments:

Improper Service of Demand Notice: The Appellant claims the

Demand Notice (required by law before filing an insolvency petition)
was not served properly.

Time-barred Claims: The invoices from which the debt arises are
allegedly time-barred (beyond the legal limit to claim them).

Pre-existing Dispute: There was a dispute regarding the invoices

before the insolvency petition was filed.

Respondent's Arguments:

Valid Service of Demand Notice: The Demand Notice was sent by

registered post to the company's registered address as per records,
fulfilling legal requirements.

Non-time-barred Claims: The debt is not time-barred.

No Pre-existing Dispute: There was no dispute before the insolvency

petition.

Court's Decision:

The Court dismissed the Appellant's arguments on all points:

Service of Demand Notice: Sending the Notice by registered post to

the registered address is sufficient service, regardless of who receives
it there.

Time-barred Claims: No opinion

Pre-existing Dispute: Appellant has not raised any plausible

contention requiring further investigation which is not a patently feeble
legal argument or an assertion of facts unsupported by evidence

30. The contention of the Learned Counsel for the Appellant that
there
were transactions between one Mr. Puneet Shiv Kumar Agarwal and
the Operational Creditor through various group of Companies
cannot fall within the definition of dispute relevant to the subject
matter of the instant case, in the absence of any communication
filed evidencing any ‘Pre-Existing Dispute’, prior to the filing of the
Section 9 Application. It is pertinent to mention that in their Reply to
the Application, filed before the Learned Adjudicating Authority, the
Appellant apart from raising a bald denial has not filed any
substantive material in support of their contentions. We are of the
considered view that ratio laid down by the Hon’ble Supreme Court
 in ‘Mobilox Innovations Private Limited’ V/s. ‘Kirusa
Software Private Limited’, (2018) 1 SCC 353 is squarely
applicable to the facts of this case.
At this juncture, we find it relevant to reproduce the specific
paragraphs is
detailed as hereunder;
“40. 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 Section 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. It is
clear that 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. It is important to
separate the grain from the chaff and to reject a
spurious defence which is mere bluster. However, in
doing so, the Court does not need to be satisfied that
the defence is likely to succeed. The Court does not at
this stage examine the merits of the dispute except to
the extent indicated above. So long as a dispute truly
exists in fact and is not spurious, hypothetical or
illusory, the adjudicating authority has to reject the
application.”

The contention of the Learned Counsel for the Appellant

regarding false and fabricated invoices is unsustainable
having regard to the fact that the invoices on record bear
the stamp of the Corporate Debtor by way of an
acknowledgement.

4. IN THE NATIONAL COMPANY LAW TRIBUNAL: NEW DELHI

Corporate Debtor/Respondent: M/s Karan Automotives Private Limited

Operation Creditor/Applicant: M/s Bhushan Power & Steel Limited

Key Points:

 Amount Claimed: Rs. 2,01,87,487.50 (includes principal and

interest) for the supply of precision tubes.
 Demand Notice: Sent by the Operational Creditor on October 7,
2021, as per Section 8 of the IBC
 Corporate Debtor's Objections:
o Challenged the validity of the demand notice as it was served
via email on a wrong person (CA Jagdish Dhawan).
o Claimed pre-existing dispute regarding the quality and supply
of materials.
o Claimed arbitration clause in the agreement.
o Claimed the petition violated the threshold limit under Section
4 of IBC (Rs. 1 Crore).
 Tribunal's Findings:
o Demand notice was served properly as per IBC rules (email to
address on MCA website).
o Threshold limit under Section 4 of IBC is met.
o No pre-existing dispute as communications regarding the
outstanding amount were not provided by the Corporate
Debtor.
o Mere issuance of debit notes doesn't qualify as a pre-existing
dispute.

The Tribunal admitted the application.

17. Though the Corporate Debtor has simply denied having

issued this letter and claimed it to be forged, they have not
been able to dislodge the other evidences relating to supply of
goods as placed on record by the Operational Creditor, or to
establish that due payment have been made by the Corporate
Debtor. Therefore, we come to conclusion that the nature of
debt is a “Operational Debt” as defined under section 5(21) of
the Code and the amount of outstanding Operational Debt is
above the pecuniary threshold limit of Rs. 1 Crore as
envisaged under Section 4 of the Code, 2016. It has also been
established that there is a “Default” as defined under section
3(12) of the Code on the part of the Corporate Debtor.
Therefore, the two essential qualifications, i.e., existence of
‘debt’ and ‘default’, for admission of a petition under section 9
of the Code, 2016 have been met in this case. We have
already given a finding that Corporate Debtor has not been
able to show pre-existence of dispute in this matter.

5. In The National Company Law Appellate Tribunal, New Delhi

Operation Creditor/Appellant: K.K. Capital Services Pvt. Ltd.

(Financial Advisor)
Corporate Debtor/Respondent: Sristi Hospitality Pvt. Ltd.

Background:

Corporate Debtor disputes the claim.

Adjudicating Authority (National Company Law Tribunal)
rejected the Appellant's application under Section 9 of the
Insolvency and Bankruptcy Code (IBC) citing a pre-existing
dispute.

Appellant's Contentions:

The dispute raised by the Corporate Debtor was a mere

afterthought and not supported by evidence.
Documents show the Appellant fulfilled their service
obligations in securing the loan.
Discrepancies in the application regarding the number of
cheques were clarified and resulted from accommodating the
Corporate Debtor's requests.

Key Findings of the Appellate Tribunal:

The dispute arose after the demand notice, not beforehand,

and lacked merit.
The Adjudicating Authority should not have rejected the
application based on these unsubstantiated disputes.
The discrepancies in the application were minor and explained
by the Appellant. The impugned order rejecting the
application is set aside.

Overall, the Appellate Tribunal allowed the appeal, criticizing

the Adjudicating Authority's reliance on a fabricated dispute to
reject a seemingly legitimate claim.

15. For deciding the dispute no. (iii) we have gone through the
mandate agreement dated 9.3.2016 which is an admitted
document and the terms and conditions of services rendered
by the Appellant is explicitly written. In this agreement in
clause 4 breakup of services and the scope of services
provided by the Appellant is mentioned in detail.
Clause 4 (f) provides that obtaining appropriate sanction from
bank/NBFC. In this agreement it is nowhere mentioned that
the Appellant will organise funding from Nationalised or
scheduled bank at low rate of interest. Thus, the dispute is not
supported by any document. Therefore, we find no basis for
such dispute.

29. Ld. Adjudicating Authority while examining the Application

if found some
discrepancies in the documents and the Application then
instead of rejecting the
Application he should have sought clarification from the
Appellant. Unfortunately, in this case, Ld. Adjudicating
 Authority has considered the discrepancies which are not
disputed by the Corporate Debtor.

31. The Adjudicating Authority wrongly rejected the claim on

the ground that the claim raised by the Appellant falls within
the ambit of disputed claim. Merely disputing the claim cannot
be ground, as held by Hon'ble Supreme Court in the case of
Innovative Industries Ltd. Vs. ICICI Bank and Anr.
MANU/SC/1063/2017: (2018) 1 SCC 407 wherein its observed
that claim means a right to payment even if its disputed. The
Code gets triggered the moment default is of Rs. 1 Lakh or
more.

32. The Adjudicating Authority failed to appreciate the

documents placed on record along with Application under
Section 9 of I&B Code.

6. National Company Law Appellate Tribunal-New Delhi

Operation Creditor: Nysa Enterprises

Corporate Debtor: Ahuja Cotspin Pvt. Ltd.

National Company Law Tribunal (NCLT) admitted the

application, finding a pre-existing dispute.

Nysa Enterprises appealed, arguing the dispute wasn't

genuine.

Grounds:

 Pre-existing Dispute under IBC:

o The IBC allows rejecting applications if a genuine
dispute existed before the demand notice from
the creditor.
o Nysa Enterprises argued their case shouldn't be
dismissed because the dispute raised by Ahuja
Cotspin wasn't valid.
 Evidence of Dispute:
o Nysa Enterprises relied on a Supreme Court ruling
requiring disputes to be more than just "bluster"
or unsupported claims.
o They argued Ahuja Cotspin's claim lacked
evidence.
 Ahuja Cotspin's Defense:
o Ahuja Cotspin claimed Nysa Enterprises
failed to deliver promised materials, causing
them significant losses (Rs. 4 cr.)
 o They admitted a smaller debt but disputed the
larger amount.

Appellate Tribunal Decision:

 The Appellate Tribunal upheld the NCLT's decision.

 While Nysa Enterprises argued the debt was admitted,
the Tribunal found the conflicting claims (admitting
some debt but also claiming huge losses) created a
genuine dispute requiring further investigation.
 The Tribunal dismissed the appeal due to the pre-
existing dispute.

7. National Company Law Tribunal-Ahmedabad

Parties:

Operation Creditor: Raghuvir Buildcon Pvt. Ltd.

Corporate Debtor: Ketan Construction Ltd.

Amount claimed: Rs. 11.59 crores (excluding interest)

o Appellants Contention:
1. No pre-existing dispute at any point of time
2. Existence of amount debt, due and payable (by way of
issuance of cheque and it being dishonoured)
3. Reliance of emails for pre-existing disputes can be
nullified by subsequent payment and certificate of
actual work done by OC.

o Respondents’ contention:
1. Pre-existing dispute: Case of suppression of facts
wherein reply to demand and emails not brought to the
notice of the AA

o Tribunal's Findings:
1. Routine correspondence in commercial relationship
cannot automatically be considered as dispute.
2. Operational Creditor has to justify its claim by adducing
sufficient documentary evidence has all issues are
resolved and payment is still due.
3. Application u/s 9 without delivery of notice of demand
u/s 8 of IBC, 2016 on the Corporate Debtor is liable to be
rejected at the very outset. Likewise, without a notice of
dispute within 10 days of notice by the Corporate Debtor
is liable to be admitted and CD is not allowed to raise
the issue of pre-existing dispute later on.
 The application is admitted.

8. National Company Law Tribunal-Hyderabad

Parties:

Operation Creditor/Appellant: M/s. Om Shiv Shakti Iron Industrial

Pvt. Ltd.
Corporate Debtor: Sheetal Shipping Metal Processor Pvt. Ltd.

Outstanding dues: Rs. 2.03 crore (w.e.f. 16.08.2018)

Date of Demand Notice: 27.06.2018
Last part payment date & amount: 25.07.2018 (R. 1,00,000)

o Respondents Contentions
1. Executed MOU dated 25.07.2018 and paid Rs. 1Lakh
towards full and final settlement and the balance on the
said date is NIL
2. Debit notes of Rs. 91 Lakh towards defective goods
acknowledged by OC and balance paid & cleared on receipt
of demand notice.
3. Ledger accounts filed by OC are forged and fabricated along
with email dated 30.11.2017 and pleaded the tribunal to
examine its authenticity. That all documents are without
stamp as against section 25 of the Indian stamps Act.
4. Claim is time barred

o Appellant’s Contentions
1. The alleged MOU is fabricated and an afterthought that only
Rs. 1 Lakh was payable.
2. Debit notes dated 25.07.2018 with fictitious stamp and no
“receiver “stamp. Denial of any signature on MOU.
3. Claim not barred by limitation, having received part
payment on 25.07.2018

o Tribunal’s findings
1. Admission by Corporate Debtor vide email dated
30.11.2017
2. No correspondence in writing for raising any disputes
w.r.t quantity and quality. Accordingly, issuance of debit
notes also puts this claim in flimsy ground wherein all
debit notes were issued on a single day relating to
goods sold even four years ago
 3. The tribunal tallied the signatures of the OC under
power vested sunder section 73 of the Indian Evidence
Act and doubted the execution of the said MoU.
4. The Petition is not barred by limitation as Rs. 1 Lakh
was paid by CD to OC on 25.07.2018
5. Whether documents are forged or not cannot be
determined by NCLT or NCLAT (Ref. Shelendra kumar
Sharma Vs DSC Ltd.)

Petition admitted.

Mr. Srinivasula Reddy vs V Nanda Gopal -National Company Law

Appellate Tribunal- Chennai Bench
This case involves a challenge to an order admitting an application under
the Insolvency and Bankruptcy Code (IBC) against a company viz “M/s
Teja Cement Ltd” (Corporate Debtor) by a 1st Respondent (Operational
Creditor) i.e V Nanda Gopal
Appellant's Arguments:
 The alleged debt is disputed as the 1st Respondent fabricated
documents to claim salary and remuneration for services never
rendered.
 Emails relied upon by the 1st Respondent are forged and not
properly authenticated.
 No board resolution exists to authorize the claimed remuneration.
 The limitation period for claiming the debt has expired.
 The 1st Respondent is not a genuine creditor and acted with a
fiduciary duty breach.
1st Respondent's Arguments:
 Worked as a consultant for the Corporate Debtor since 2010 and
was promised salary and remuneration through shares.
 Provided emails and letters from the Corporate Debtor
acknowledging the debt.
 The debt is not barred by limitation due to continuous
acknowledgment by the Corporate Debtor.
 Emails are genuine and the website domain was created jointly.
 The Criminal Complaint filed by the Corporate Debtor alleging
forgery is irrelevant.

Dispute:
 Whether the debt is genuine or disputed.
 Admissibility of disputed documents and emails as evidence.
 Applicability of limitation period.
 Authority of the Adjudicating Authority to determine forgery.
the outcome of the appeal is that the National Company Law Tribunal
(NCLT) judgement admitting the application for Corporate Insolvency
Resolution Process (CIRP) is set aside. The application is found to be
barred by limitation.
The judgement concludes that the Respondent's claim is time-barred
based on the following reasons:
  The alleged default occurred on 25.07.2011 as per the Respondent.
 The Limitation Act prescribes a three-year period for filing such
applications (Article 137).
 The Respondent did not provide any evidence of acknowledgement
from the company before the limitation period expired (24.07.2014).
 The Respondent relied on later communications (dated 29.01.2015)
to establish the claim, but these fell outside the limitation period.
In essence, the Respondent waited too long to file the application after the
alleged default, exceeding the limitation period set by law.
Key take away paras:
PRE-EXISTING DISPUTES:
Issue: 9. The Learned Counsel for the Appellant submits that the
pendency of the 'Protest Petition' involving determination of 'Forgery' and
'Fraud' would constitute a pending
legal dispute, under the tenets of the I&B Code, 2016 and, therefore, the
'Application'
filed by the 1st Respondent/Operational Creditor warrants dismissal, in
respect of a
'Disputed Debt'

Analysis: 91. It must be borne in mind that on the date of issuance of

'Demand Notice' dated 05.12.2018 no criminal case filed and it is to be
remembered that on 21.12.2018 a criminal complaint was filed, which
cannot lead one to arrive at a conclusion that there was a pre-existing
dispute.
Srimanta Kumar Tripathy and Anusuya Tripathy, in the National
Company Law Tribunal-Cuttack Bench
Parties Involved:
 Operational Creditors (Petitioners): Srimanta Kumar Tripathy
and Ms. Anusuya Tripathy (claimed to be a family business)
 Corporate Debtor (Respondent): S.S Mining and Infra Private
Limited
Dispute:
The petitioners claim that the respondent owes them Rs. 1,98,47,957 for
materials supplied and machinery deployed based on a request letter
from the respondent's MD. The respondent denies the debt and accuses
the petitioners of forging documents during the period they were allegedly
in charge of the company's finances.
Petitioners' Arguments:
 They entered into an agreement with the respondent and provided
materials and machinery.
 The respondent did not pay the dues, leading them to file an
arbitration petition.
 The arbitration petition was dismissed due to a technicality.
 They discovered fraud by the respondent only during the course of
hearings in another application filed under the IBC.
 The limitation period for filing the CIRP petition should start from the
date of discovering the fraud.
Respondent's Arguments:
  The petitioners were in charge of the company's finances and had
the opportunity to forge documents.
 The alleged debt arose in 2014-15, and the petition filed in 2022 is
barred by limitation (more than 3 years).
 The petitioners cannot rely on provisions related to dismissed
arbitration petitions because theirs was dismissed due to their own
default.
Tribunal's Decision:
The Tribunal dismissed the petition for the following reasons:
 Limitation: The Tribunal ruled that the petition was time-barred
under Article 137 of the Limitation Act. Since the debt supposedly
arose in 2014-15, the petitioners had three years to file the CIRP
petition. Even with the COVID-19 extension considered, the petition
exceeded the limitation period.
 Fraudulent Discovery: The Tribunal did not accept the petitioners'
argument about a recently discovered fraud. They pointed out that
the petitioners failed to provide any evidence of a specific date
when the alleged fraud was discovered.
 Joint Petition: The Tribunal held that a joint petition by multiple
operational creditors (as in this case, Mr. Tripathy and Ms. Tripathy)
is not allowed under the IBC provisions. Each operational creditor
should file a separate petition with individual demand notices.
 This case highlights the importance of filing claims within the
limitation period specified by law.
 The burden of proof for claiming a later discovery of fraud lies with
the petitioner.
 The IBC has specific guidelines regarding operational creditor
petitions, including individual filings for separate debts.
Unresolved Issues:
 The validity of the alleged agreement between the parties remains
undetermined.
 The accusations of forged documents were not investigated by the
Tribunal.

M/S Embassy Property Developments Pvt. Ltd. In The Supreme

Court of India
The document discusses the jurisdiction of the National Company Law
Tribunal (NCLT) under the Insolvency and Bankruptcy Code (IBC), 2016.
Key points:
 NCLT is a tribunal that deals with insolvency and bankruptcy
proceedings for companies.
 It has the authority to decide on various matters related to the
insolvency process, including claims by or against the corporate
debtor.
 However, NCLT's jurisdiction is limited to matters arising from the
IBC and it cannot adjudicate on disputes outside its purview.
Specific scenarios discussed in the document:
1. Dispute over lease extension: The NCLT cannot decide on the
validity of a government order rejecting a lease extension request
 from a corporate debtor. This falls under public law and requires
judicial review by a regular court.
2. Allegations of fraudulent CIRP initiation: The NCLT has the
authority to investigate claims of fraudulent initiation of Corporate
Insolvency Resolution Process (CIRP). Section 65 of the IBC
empowers it to impose penalties for such cases.
In conclusion:
 NCLT focuses on insolvency resolution within the framework of the
IBC.
 It cannot handle disputes related to other laws (like the MMDR Act)
or act as a substitute for judicial review of government decisions.