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2019 (12) TMI 1410 - 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 - allegation that the Petitioner has not completed the work within the given time and there was a delay of 107 days in completing the work - HELD THAT:- Clause 4 of the work order specifically provides for a time period of 67 days for completing the works which includes all holidays and weekly holidays and other non-working days. Therefore, excluding the delay due to Petitioner's failure on account of local conditions is untenable and was disregarded by the Corporate Debtor. The work order was issued for an aggregate contract value of ₹ 1,14,04,128/- and that the Corporate Debtor had already paid an amount of ₹ 1,04,52,250/-. The ledger statement thus certified the amount paid by the Corporate Debtor to the Petitioner. The Corporate Debtor has enclosed the following emails, which were all before the issue of demand notice dated 04.12.2018 to show that there is a pre-existing dispute - All the above emails were exchanged between the parties before the issuance of demand notice and upon perusal of the same it can be said that admittedly there is a delay in execution of the project and hence there is a pre-existing dispute covered under section 5(6) of the Code. It is beneficial to refer to the judgement of the Hon'ble Supreme Court in the case of MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [2017 (9) TMI 1270 - SUPREME COURT] wherein it was held that So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. When the law laid down by the Hon'ble Supreme Court in the above case is applied to the facts of the present case it is established that there is a clear dispute relating to the existence of debt as provided u/s 5(6)(c) of the Code, since the Petitioner has not completed the project in time - petition dismissed.
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