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2020 (6) TMI 732 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor committed default in repayment of its dues - non-reponse of Corporate Debtor - ex-parte CIRP proceedings - existence of debt and default or not - HELD THAT:- The original Agreement dated 14.12.2015 was effective for a period of one year from 04.01.2016. However, the main agreement was amended vide addendum dated 13.12.2016 by extending the terms of the agreement for the additional period of one year i.e. till 30.11.2017. Again it was extended by addendum dated 28.08.2017 extending till 30.06.2018. However, the Invoices against the claim made are dated 11.05.2018, 08.06.2018, 10.07.2018 and 02.08.2018. The period of invoice covers the period from April, 2018 to July, 2018, whereas the terms of Agreement was last extended till 30.06.2018 and services were stated to have stopped from 31.07.2018 due to non-payment. However, it is asserted that once the outstanding amount is agreed by the Respondent in unequivocally terms, other issues would not be much relevance to the issue in question. It is true that the Petitioner has also filed NeSL certificate issued in accordance with provisions of Section 65B (4) of Indian Evidence Act, 1872. However, before initiation of CIRP in respect of Application/ Petition filed U/ s 9 of Code, the Adjudicating Authority has to be satisfied that debt in question should be un-disputed. In the instant case, the Respondent has not responded to the notice issued by the Adjudicating Authority, except mere statement that they are going to settle the issue. Therefore, the Adjudicating Authority is handicapped by the non-response of the Corporate Debtor and it cannot initiate exparte CIRP proceedings like in Civil Suits. It is a settled position of law that the provisions of the Code cannot be invoked to settle the dispute(s) or to recover the alleged outstanding amount. Admittedly the Petitioner has not invoked other remedies available except the provisions of the code by issuing demand notice. The mere acceptance of the debt in question by the Respondent would not automatically entitle the Petitioner to invoke the provisions of the Code, unless the debt and default is undisputed and proved it to the satisfaction of the Adjudicating Authority. As per the copy of Annual Returns for the Financial year 2017-18, filed by the Petitioner in respect of the Respondent Company, its turnover and net worth are ₹ 103,322,162 and ₹ 1,325,365,853/ respectively. Therefore, the Respondent Company prima facie appears to be solvent Company so as to resolve the issue of outstanding amount in question. The Respondent, in the first instance, is directed to try to resolve the issue of outstanding, as it is stated to be not in dispute, failing which, the Petitioner is at liberty to invoke the Arbitration Clause No. 13 as contained in the Agreement dated 14.12.2015, and in such event, the Respondent is directed to co-operate with such arbitration proceedings to resolve the issue, instead of forcing the Petitioner to invoke legal remedy again - Petition disposed off.
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