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2018 (8) TMI 1876 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI.Maintainability of application - initiation of CIRP - Corporate Debtor failed to pay the outstanding amounts - existence of default or not - the defense of the ‘Corporate Debtor’ to stave off the Insolvency Resolution Process as sought to be unleashed by the Applicant, which primarily rests on the ground of a preexisting dispute prior to the filing of the application. HELD THAT:- The registered office of corporate debtor is situated in New Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - The amount of default exceeds ₹ 1,00,000/- as per the requirement under section 4 of the Code, 2016. Hence, this application is within the purview of section 9 of the IBC, 2016 - The default in payment of operational debt first became due and payable from the date of the invoice dated 05.12.2015 raised by the Applicant and further admission by corporate debtor when four cheques were issued in respect of the said debt alongwith the interest. Hence, the debt is not time barred. Although there is clear debt and default in payment of debt which is due and payable under the Code, 2016 but due to literal interpretation of section 11 of the Code, 2016, the Applicant herein is treated as Corporate Applicant as per the proviso to section 11 of the Code, 2016, and there is much needed clarification required as to whether corporate debtor undergoing corporate insolvency resolution process filing Application under section 9 of the Code, 2016 can file it in the capacity of “Operational Creditor” or “Corporate Debtor/ Corporate Applicant for Corporate Debtor” against the same or another corporate debtor. Form the wordings of the Code it is not manifested whether the intent of legislature was to debar the company who is undergoing CIRP, from enforcing its right to recover legal debt which is indispensable for the survival and revival of the company. The point raised by the Ld. Counsel for the applicant that company who is a corporate debtor, if is not allowed to recover its debt & receivables which was the cause of its undergoing ICRP, and recovery of its debt being the only hope of such corporate debtor to come out of CIRP. Subsequently if not permitted can subtly lead to the fatal consequences of such corporate debtor. But in view of the clear bar as mentioned in Section 11 clarified with further explanation at the end of Section 11 and the inclusiveness Section 11 with respect to applicability of the said Section 11 to the entire Chapter II which includes corporate applicants under Section 7, 9 & 10. Thus, inspite of application being complete, the Application is to be rejected in terms of Section 9(5) (ii) & Section 11 of IBC, 2016 - Application dismissed.
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