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2020 (6) TMI 750 - NATIONAL COMPANY LAW TRIBUNAL — BENGALURU BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - service of demand notice - HELD THAT:- The primary conditions require to be fulfilled to file an application filed under section 9 of the Code, are that claim in question, there should be proper notice under the provisions of the Code on the other side ; debt should be prima facie established and it should not be in dispute - In the instant case, it is not in dispute that the demand notice dated November 18, 2019 issued by the petitioner, which was stated to have received by the respondent on December 6, 2019 was replied by the respondent vide its reply dated December 9, 2019 by bringing to the notice of the petitioner about the defective notice as well as pendency of the arbitration application as stated supra. The demand notice was issued on November 18, 2019 by the petitioner by, inter alia, stating that "if the respondent dispute the existence or amount of unpaid operational debt of ₹ 8,44,49,943 provide the undersigned within ten days of the receipt of this letter, of the pending of the suit or arbitration proceedings in relation to such dispute filed before the receipt of this letter notice". The instant company petition was filed before expiry of 10 days' time from the date of the receipt of the copy of the demand notice. Therefore, the petitioner without giving any sufficient opportunity to the respondent has rushed to this Adjudicating Authority by filing the instant application by not disclosing the material facts of the case. The petitioner is supposed to advert to the arbitration application filed by the respondent. The instant company petition is filed with an intention to recover the disputed outstanding amount in question, which is not permissible under law - instant petition is disposed off by granting liberty to the parties to prosecute arbitration application, which is already pending, and to take next course of legal action, after arbitration. proceedings concluded
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