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2019 (12) TMI 1450 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Operational creditor or not - existence of debt ad dispute or not - HELD THAT:- It is an undisputed fact that the operational creditor and the corporate debtor entered into an agreement of distributorship dated 3-4-2017. The petitioner is a distributor of the goods supplied by the corporate debtor. The petitioner is selling the product of the corporate debtor. Thus, the petitioner is rendering service to the corporate debtor. It cannot be said that the petitioner does not fall under the definition of 'the operational creditor'. The petitioner is a distributor for the goods supplied by the corporate debtor. It is nothing but a kind of service being provided to the corporate debtor in respect of the goods produced by the corporate debtor and the goods are being sold through the operational creditor - the contention of the learned counsel for the corporate debtor that the petitioner does not fall under the definition of 'the operational creditor' and the amount also does not fall under the definition of 'operational debt', cannot be agreed upon. Presence of dispute in the form of a civil suit filed against the corporate debtor by the operational creditor or not - HELD THAT:- Section 5(6) of the I&B Code referred to above. It is true that the dispute includes pendency of suit. It is the specific case of the operational creditor that it has filed the civil suit against the corporate debtor in respect of the debt referred to in the petition. Therefore, there is a pre-existing dispute and as such the petition cannot be admitted under section 9 of the I&B Code - Similarly, the learned counsel for the corporate debtor also relied on decision of the Hon'ble NCLAT in the matter of Ashoke Ghosh [2020 (1) TMI 473 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], and contended that when a civil suit is pending it amounts to prior dispute and hence the petition cannot be admitted. The present petition cannot be admitted for the reason that already a civil suit was filed by the operational creditor against the corporate debtor, which amounts to prior dispute. The petition cannot be admitted on this ground - Petition dismissed.
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