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2020 (1) TMI 1248 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- There is no such clause that the corporate debtor is liable to pay/compensate for the loss caused to the petitioner. Moreover, if at all there was any loss to the petitioner out of the MOU, then why the petitioner waited so long i.e. from 14.01.2016, till filing of the application. Admittedly, the instant dispute arises out of breach of contract i.e. MOU dated 15.01.2015 as alleged by the petitioner - Admittedly, the petitioner used to purchase the material by paying an advance amount for the goods he is supposed to receive from the corporate debtor and, thereafter, reimbursement was made as per the MOU. The debt can be considered as an "operational debt" provided the claim arises out of the provisions of goods or services including employment or a debt in respect of the payment of dues arising under any law for the time being in force and payable to either the Central Government, any State Government or any Local Authority - there is no relation of operational creditor and corporate debtor. Operational creditor never supplied any goods and/or rendered services to the corporate debtor. However, the instant case is arising out of breach of MOU and certain promises made by the respondent. Even as per the MOU which has been entered between the parties only reflects the arrangement for selling of the goods by the applicant and certain percentages are fixed as reflected from Clause 7 of the MOU dated 15.01.2015 under the head "Marketing" (Page 61-64) which is self-explanatory - Under the circumstances, there is a breach of the said MOU which the petitioner entered with the respondent for getting certain benefit on the sale of the products. The scheme of the code is to ensure that when a default takes place, that is when the debt become due and if not paid, the Insolvency Resolution Process begins. The default is also defined in section 3(12) i.e. "default means non-payment of debt, when whole or any part or an instalment or an amount of debt has become due and payable and if not repaid by the debtor or the Corporate debtor as the case may be". The Adjudicating Authority is not convinced that there exist between the Petitioner and the Respondent a relationship of an "Operational Creditor" and "Corporate Debtor" and that there is an "Operational Debt of which a default has been committed and/or occurred - petition dismissed without costs.
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