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2020 (1) TMI 1263 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor's failure to reduce or liquidate its liability - existence of debt and dispute or not - Whether the application is within limitation under Article 137 of the Limitation Act, 1963? - Whether implied acknowledgement is an acknowledgment under Section 18 of the Limitation Act, 1963? - HELD THAT:- On perusal of the averments made in the application filed on behalf of the Operational Creditor/Petitioner and the reply filed by the Corporate Debtor/Respondent, we find that invoices was raised on 03.06.2016 whereas the present application is filed on 07.06.2019 in view of Article 137 of the Limitation Act, the applicant is required to file the applications within 3 years when the right to apply accrues. Admittedly, in this case the right to apply accrues on 03.06.2019 and the application is filed on 07.06.2019 after 3 days from the date of default i.e. 03.06.2016. - the said acknowledgment was made within 3 years from the date when the right to apply accrues. Therefore, we are of the considered view the application is not barred by limitation rather under Section 18 the limitation shall run from the date of acknowledgment i.e. 19.04.2018 - thus, the present application is not barred by limitation and it is acknowledgment under Section 18 of the Limitation Act so these two points are discussed in affirmative. Whether the dispute regarding quantum of debt amounts to a pre-existing dispute? - HELD THAT:- The dispute must exist before the receipt of demand notice or invoice. In the present case, there is a dispute regarding quantum of the amount due to be paid by the Corporate Debtor - merely disputing the amount does not fall within the ambit of a pre-existing dispute under Section 9 of the Code. Whether brokerage services come under Operational Debt under Section 5(21) of the Code? - HELD THAT:- In the present case, the Bills raised by the Operational Creditor are in respect of the services provided to the Corporate Debtor. Hence, brokerage services would fall within the definition of Operational Debt under the Code. Whether the proof of work relationship i.e. a written or oral agreement has been attached in the petition? - HELD THAT:- It was an admitted fact that there was a work relation between the Operational Creditor and the Corporate Debtor whereby the Operational Creditor provided brokerage services to the Corporate Debtor and payments were remitted to the Operational Creditor for the same. The Corporate Debtor had not disputed or denied the fact that there was a work relation between the parties. Further, the Operational Creditor has annexed Brokerage Bills and the Corporate Debtor has annexed Details of cancellations and adjustments by the customers as well as copies of provisional allotment letters of units and the proof of payment of refund amount. It is seen that the amount in default in excess of ₹ 1,00,000/- being the minimum threshold limit fixed under IBC, 2016. Considering the circumstances this Adjudicating Authority is inclined to admit this petition and initiate CIRP of the Respondent. Accordingly, this petition is admitted - Petition admitted - moratorium declared.
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