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2017 (7) TMI 1232 - Tri - Companies LawCorporate Insolvency Resolution Process - existence of "Operational Debt" - qualification as a "Operational Creditor" - period of limitation - existence of pretentious claim, and an existence of the 'Dispute' - Held that:- In this case, an unchallenged fact is that the Petitioner is a professional rendering services of arranging Corporate Finance and Investment Banking. Even the Respondent had engaged the Petitioner in that capacity only. Hence qualifies as "Operational Creditor" i.e. a person to whom an "Operational Debt" is owed for rendering professional services. A Professional Service provided by a Chartered Accountant definitely fall under the expression "Services" as incorporated in the definition of "Operational Debt" U/s. 5(21) of the Code. Once it is hereby held that the impugned debt falls within the ambits of "Operational Debt" hence to be adjudicated under the provisions of Section 8 and Section 9 of the Code". As a result, the Petitioner in question definitely qualifies as "Operational Creditor. Delay in making application - As relying on JK JUTE MILLS COMPANY LIMITED VERSUS SURENDRA TRADING COMPANY [2017 (6) TMI 254 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL] the mandate of sub-section (5) of section 9 is procedural in nature, a tool aid in expeditious dispensation of justice. Therefore, "directory" only. Otherwise also considering the facts and circumstances of the case as narrated in the foregoing paragraphs, this Bench had proposed a reference for setting up a Larger Bench which took some time awaiting decision of NCLAT on the controversy of the term "Dispute". Hence the delay cannot be attributed to the Petitioner. We therefore hold that merely on this technical ground alone this Petition need not be discarded at the threshold. Existence of dispute - This is not a case of raising of the dispute after the initiation of insolvency proceedings. This is a clear-cut case of existence of a dispute since raising of the alleged invoices. In the case of Kirusa Software Pvt. Ltd. Vs. Mobilox Innovations [2017 (6) TMI 984 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, MUMBAI] the interpretation of the term 'Dispute' is exhaustively discussed by the Hon'ble NCLAT Bench, New Delhi and held that the definition is illustrative and not exhaustive. A dispute is to be raised by the Corporate Debtor with sufficient particulars and material. Prima facie the Respondent has successfully demonstrated through sufficient material the absence of any liability toward the Petitioner since inception. So, it was held that the provisions of section 9(5) prohibits the Adjudicating Authority from proceeding further, if there is a genuine dispute raised. This is not a case where we can say that the Respondent Company had given a colour of a genuine dispute or the dispute is illusory. Thus due to two reasons first, ethe Petition in question is not maintainable. Petition in question deserves to be dismissed.
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