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2019 (12) TMI 1382 - 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 - time limitation - HELD THAT:- A debt in the first instance, should arise/based on legal enforceable covenant, under the provisions of the Code, the proceedings under the Code are summary in nature. Therefore, the Adjudicating Authority cannot go into roving enquiry about the enforceability of the Agreement in question. As rightly pointed by the Respondent, since the Petitioner claims that the Agreement in question is binding on the parties, he can settle the issue, through Arbitration, instead of invoking provisions of the Code to recover the alleged outstanding amount. It is a settled position of law that aggrieved party, in the instant first instance, has to exhaust alternative remedy, like making representation, issuing notices, invoking arbitration as per Agreement(s) in vogue. And in case, no alternative remedy is available, aggrieved party can knock the doors of justice. And proceedings under the provisions of Code is no exception for the same, in the normal course. Moreover, the facts and circumstances of the case would justify for the Petitioner to invoke Arbitration Clause since several issues to be resolved. Time Limitation - HELD THAT:- The impugned claim relates to the period for 2015-16, 2016-17 and 2017-18, totalling for an amount of ₹ 1,75,16,250/-. For all these years, the Petitioner got issued the Statutory Demand Notice in question only on 11.10.2018. The Petitioner has not explained to the satisfaction of Adjudicating Authority as to how he is entitled for the amount, as per Agreement in question, since the Petitioner is entitled for payment in proportion to amount received by the Respondent and for the delay-in initiating recovery proceedings before these proceedings. The Petitioner has failed to make out any case so as to initiate CIRP against the Corporate Debtor and thus the Petition is liable to be dismissed.
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