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2019 (12) TMI 1396 - 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:- The Corporate Debtor has stated that the claim of the Operational Creditor is not valid, inter alia on the ground that there is a preexisting dispute. The Operational Creditor had filed Special Civil Suit No. 209/2013 against the Corporate Debtor, and the same constitutes "prior dispute" as laid down by the Hon'ble Supreme Court in Mobilox Innovations Private Limited vs. Kirusa Software [2017 (9) TMI 1270 - SUPREME COURT] - This argument is untenable, because the remedies under the IBC are in addition to, and not in derogation of, the remedies available to the Operational Creditor under any other law. In any case, that suit has been filed by the Operational Creditor and not by the Corporate Debtor, and hence cannot constitute a case of "prior dispute." Differing stands of Corporate Debtor - HELD THAT:- There is no explanation for the differing stands taken by the Corporate Debtor in the letter dated 24.05.2012 and in the reply to the Demand Notice dated 12.12.2018 and in the reply to the Petition dated 03.06.2019. If the material was custom-made, then it could not have been diverted to any other customer. If it was, then it could not have been sold as scrap - So, the contradictory stands taken by the Corporate Debtor is not tenable and therefore deserves to be rejected. Refund of advance amounts paid - HELD THAT:- The claim has to be in connection with the provision 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. In the present case, payment of advance by the Operational Creditor would not satisfy the definition of "Operational Debt" under the IBC - In the present case also, the claim relates to non-payment of advance money and hence the same is not covered under the definition of "Operational Debt". Time Limitation - HELD THAT:- Since the date of default even according to the Operational Creditor is 22.09.2014, and applying the principles laid down by the Hon'ble Supreme Court in B.K. Educational Services Private Limited [2018 (10) TMI 777 - SUPREME COURT], the present petition under the IBC is barred by limitation. The application fails the twin tests of merit and limitation - application dismissed.
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